god please in court good morning your honor gregory barker for the petitioner employee this case is about the appropriate forum and the appropriate remedy when an agency decides to downsize and overstaffed office and does so on the basis of priests textual performance deficiencies to avoid the statutory consequences of a formal reduction in force or risk that you didn't actually feel the determination with respect to the an acceptable you look in the appendix appendix eighty eighty five it is you eighty five when the challenge was made the government argued that they couldn't bring manner but we've got a final finding they performed in an acceptable manner and it was not appealed but don't we have to begin with the premise that we are talking about someone who is just charged for unacceptable performance and then the question is whether you are allowed to discharge someone for an acceptable performance if they happen to be a preference eligible but term the answer is that the facts the same factual relevant to the to the the the performance claims in other words the same facts apply and those who raise the appendix if we look at appendix some twenty thirty four those are always it's not like they were kept silent the all the same facts were raised the question is whether it has to go through an old complaint the government is saying that it has to if the government is saying that oh you should you should you had to apply through the separate you had to do  deal the performance but if you look at the actual claim that was made it was the e o it was age discrimination there's no reason that age discrimination has to the performance has to be part of ages from nation as opposed to  ok in other words it's the same facts you are so there's no reason why the facts can be only considered in one context and not in the other again especially in this stage of the proceedings where the basis for moving from employment and at the very outset this was part of the all the facts pertaining to that were incorporated and were part of the the complaint made by so in other words the chapter of forty three the way the agency did the chapter they include it as part of the as part of the age discrimination case but there's no reason this has to be age discrimination it's no more relevant to a school nation than it is veteran's preference discrimination are you arguing that ok preference i like  the office was downsized the employee was never replace so this is not going to be something that we're just going to say oh there's automatically a veteran's preference claim in every performance claim no because you're we have the fact that there was a downsizing  employee who was removed but it doesn't demonstrate that tend was when they removed him was to reduce the size of the office i think that's a critical difference on rare requires an intention to remove to reduce the size of office and layoffs as a result of that intention at least this record demonstrates an intention to remove an employee who they thought wasn't performing according to their standards and then a decision not to replace well judge moore that's the that's certainly what the government argues however if you look at the tally of the facts and circumstances and again we have to assume the removed for cause and then the agency decided not to rehire what can i do with the factual front that was abuse of discretion there were made factual findings when there is no the evidence is directly in contradiction to the evidence why what evidence is there that the agency intended to reduce the size of the opposite and made it that was the reason they eliminated this point the evidence is set forth in appendix pages twenty they were they were looking to remove the remove the number of people the fact that they transferred someone there at the same time that the spouse was transferred so it was they brought someone in if you look at almost all the circumstances i would encourage your honour's if to please read appendix pages twenty to forty three so look at that to tell you the circumstances which are just ignored by the board that was the abuse of discretion was ignoring the fa restriction and force jurisdiction can be raised in any any time but i think the fact that they didn't even mention it in their opening brief kind of shows the weakness of their argument that there was no jurisdiction  if the court were inclined to consider the government's alternative argument the employee would argue that the failure of the agency cross appeal or even file a statement of disagreement certainly suggests a proforma nature of the agency's jurisdictional argument and misunderstanding that the employee is not claiming that he's entitled in other words there's no dispute that the employee was removed and there's a consequence he had to take this involuntary retirement i mean it's already it's already a fact so i think that the import veteran preference rights under the veterans employment opportunity act into a for cultural director in this case is very clear that he claimed brought before the board and currently before this court is not a chapter forty three challenge the undertaken pursuant to five c f r three one five or four three two and so it's almost basically and i understand those are the ravenswood provisions that explain what has to be done to undertake the suppose that there were five bazillion e mails in this record ok where various people within the governor saying we've got to cut that office down to people we don't have the budget for three people there we've got to reduce it to two people but they never actually undertook a record pursuant to these regulations but suppose this record contains evidence which does nothing indicating a clear intent on the part of the decision makers to get rid of somebody in that office for the sole purpose of reducing the size because they don't have the money to keep paying three attorneys are you saying that there could never be firing pursuant to a writ under those circumstances because it wasn't announced under five c f r three five you see what i'm saying i  is in a scenario where there were evidence in the record which it certainly is in this case but if you had a record that showed that in fact the agency's purpose was not only to reduce the headcount but you reduce the headcount of someone in particular that they would not be able to reduce if they went through a riff then that could be something that could be raised in a chapter forty three challenge and the chapter forty three challenge the employee could say well first of all all these arguments for why michael formants was insufficient legitimate and here's the reason why my performance actually was satisfactory furthermore as an affirmative defense i think it's subsection b eleven in beach well which refers to if the purpose for a decision is really to avert someone's preference rights i think that's an argument that could be raised in theory under chapter forty three now it would run into kind of kind of the same circular problems because again that they would assume not only that the agency wants to reduce headcount but that they want  specifically avoid reducing the headcount of whoever would be first in line to be removed and remain a fence his whole point this is his own argument is that they brought in this husband and wife and that's who they wanted in the office and they wanted to get rid of him so they use this excuse and i mean that is his point so you're just saying that he's procedurally in the wrong to make that point lars you described exactly his argument as i understand it right and the it would be made exactly where mr bach in fact may i mean mr bach had a choice he could've raised this this argument directly with the board or he could have raised with the if you chose to raise this chapter forty three challenge with the show he included with also the chapter forty three challenge and also a usera client and the petitioner was very very clear on the record below that that was not his intention he was not arguing a chapter forty three challenge to his determination here he was only raising the a claim he intended to pursue the chapter forty three challenge exclusively in front of the answer the board eventually said ok if that's what you want to do that's fine whenever that ego claim is exhausted if you want to then bring the appeal to the board you and so whether in some other hypothetical case you could have a scenario where the record is so clear that this was really a combination of an agency's desire to avoid a riff and to force some improper purpose and of course that the other step right was there an improper reason that they wanted to terminate the employee in particular as opposed to what the reason was here what the record shows that the employee simply had insufficient performance and was probably removing that standard whether you could have a scenario where that case might be viable it certainly isn't this case where there is no chapter forty three challenge before the board and there is simply the claim and the is simply not implicated by the arguments being raised claim for lack of jurisdiction because the allegations raised here simply do not implicate a statute relating to veterans preference this is a chapter forty three removal there is no chapter forty three challenge the way is simply not implicated by this the court could  chapter forty three claim and if we look at that and even if specifically i'm citing to page appendix seventy five seventy eight eighty and then eighty six to eighty eight and if you just go and look at those page by page and see this complaint of discrimination combination claim and then the agency is saying that we won't consider all these different things we won't consider the performance improvement plan because more than forty five days of come by so below they're telling us oh you can't come here in fact i would out of out of raise an issue of us of a stop war but it's that whole record is not before the court but at the very least it shows the weakness of the government's case when one pages seventy seven appendix seventy and then eighty and eighty six through eighty eight they're refusing to consider the performance improvement plan and now they come into court and say oh you should have done it there that's that's wrong and that's so i mean it's the facts it's the same facts that relate to the performance that relate to the protect the pretext and those facts are you know the employer supposed to be given the benefit of the doubt give up the right to look at the facts that are exactly relevant to the more they are the usera it's the same facts that's not an exclusive forum because the government themselves said we won't even consider it in that form so why does that suddenly become the place that should be considered when the government told the employee that it wouldn't consider those facts so it's basically what the government is trying to do is they're slicing it