i would like to structure my argument our challenge to the manner in which the judge before the mary system protection board close to record despite the fact that discovery had been undertaken with permission case in light of the discovery secondly i would argue the merits of the final decision by the board which held that the agency not breached the settlement agreement that had been executed between the parties  f firstly because it was not argued in the agency response that there was a recent will amount of time of compliance with the settlement agreement therefore the judge when the judge showed the station on the basis of reasonable compliance for the contract so that for example if you had a contract that called for a change in the building that they were working and that's obviously something is asking about the ears are monster that wasn't stated but that wasn't that the nature of the purpose of the agreement the purpose was that while he would be transferred to ponce he would have these work schedule in consideration that he was tr d as an agreement because he filed an action for reprice the whistleblower activity that he had engaged in and they agreed that he would no longer work in san juan where he was stationed for years and he would now working on  is there any relationship between the whistleblowing activity and the settlement agreements you know the part where he's going to be transferred to the remote one and that is part of our argument of their own reasonable and arbitrary manner in which the agency changed history of duty in breach of what had been agreed upon in two thousand and twelve going to you wouldn't suggest that there's anything improper  were cancelling the settlement agreement or changing it the way we wanted the you have any explanation to what actually the those statements are meaningless do you have any in fact we were to say yes the agreement could be terminated in a reasonable period of time and that sixty years was reasonable for what difference does it make whether the claim of fish and see your need for additional work hours was correct or the term just expires because a reasonable period of time is over with and it doesn't make any difference why it was decided to do with this law that says that we are a settlement agreement as silent as the time or duration and you have to you can have a reasonable time under the circumstances is presumed that's the longer relying on that argument is as long as he promised you know accordance with the agreement they have to give him this work yes but if they transferred him back to say then that my dad had different problems it would be could be a so i understand that the administrative judge didn't give a date certain on which discovery would and however in march and it other times she asked the parties to identify if they were going to be continuing  and then in april sent another letter asking for an identification of whether there would need to anyone would need more time for discovery and there was no response at all i mean why is that not reasonable for her to assume given her on moving the date so that the part so that you could take your discovery and when she then asked again and to know whether further discovery was required before the end of april there was no response why isn't what she did reasonable because you didn't take into consideration that that the consideration that it was the th that that discovery was in the record what wes wesson carberry during proceedings and she did not allow petitioner to use that discovery even the one that had him that prohibited you from providing that information to the court earlier in time the information that you were to gathered from discovery yes the board rules don't allow parties to file evidence for the record while discovery is spending whether proceed  necessary or a hearing and these proceedings for enforcements do allow for a hearing whatever that she asked for you know her april letter was not responded to i mean does that mean you're think that given agency below acted under the assumption that discovery could become doubt that in may now they argue that it was clear that he couldn't or they suggest that what below the agency protracted producing the agency the witness and only  at the time that it's dated and yes there is that's in the declaration that the agency filed in response to the petition for enforcement which is at  unable to fill that position since that time so at the time that the change was made to the schedule the agency had been down to one year all just outside of san juan for quite some time and for that reason they determined there  an acute need to increase the availability of services to veterans outside of the san juan area so your argument is the government had a problem their solution to the problem was to arbitrary the settlement agreement that they made sixteen years earlier forward understand i am of course wouldn't frame it that way your honor i'm sure under those are the facts right not because whether it's an abrogation of the settlement agreement sort of assumes the nature of the legal standard that's being applied under the standards that the board established and that have been in place for more than twenty five years when the agency performs for a reasonable period of time when the duration is not set within the settlement agreement and has fully performed as long as it performs for a reasonable period it's not abrogating the agreement by performing for a reasonable period and then you know ceasing to perform that it's unilaterally determining what is a reasonable period well the board determines what's a reasonable period the agency takes the risk that if the action is challenge that the board may disagree with the agenc has not your honor although two things with respect to that and a decision issued in the early ninety's which was quite some time ago cited by the board called this court did address a situation that was just don't was there i've read that and it is but the reasoning still stands the nd thing is that the petitioner really hasn't challenge the board precedents he hasn't relied upon any authorities for the proposition that this president is wrong or that it should be over turrent he really just disagrees with the notion that the agreement doesn't provide a duration what sort of response to their position that it truly doesn't provide a duration because the time period the time period should be tied to the location where he's stationed because he lives far away from that location and so that's the argument i hear is they're saying it's not reasonable because there's a tie between the location and the time period so so long as he's at the location and that's the time period which your response to that specific argument so the response to that is that if if that was the arrangement that the petitioner wanted in two thousand and one that is the one that should have been put they will not be reduced no conditions are no unless we decide otherwise there's no the government did not reserve any right to the tensile that just said you're going to be three hours of travel per day very clearly tied to the distance problem no question about that is there i don't believe so your honor but it's not clearly tied at all to a duration or to a condition  of being present in the clinic and the reason that the government was not require more what more would you wanted to say to make it clear d the transfer took is related to the compressed work had i'm not suggesting that there needs to be and needs to be clearer that there is you know it was at the outset a relationship between the two but what i am suggesting was that if the parties wanted to make it so that the that forever after while he was a ponce he would maintain the same schedule that that relationship had to stay the same for ever that needed to be stated in the agreement it could have been the case that at the outset it would have made sense for him to have a reduced schedule to account for travel time while he made arrangements to move closer ponce could have in which case it would have said something to that effect wouldn't well that's sort of just the reverse of the argument  i do agree you are your whether you're president does i mean or anything you do agree that in deciding what is reasonable time we need to look at the entire context in which this settlement agreement was made and the extent to which it should continue under the circumstances in that part of what you're precedent calls us to do or that's what they tell the board to do board concerning the circumstances surrounding the agreement and the purposes of the parties in playing together and for the reason that is not very unusual with some girl employee would be good for commuting it is exceptionally unusual ye support for that of the whether is yes i believe that when this court reviewed for example in the non presidential decision biggie when this court reviewed the board's determination of what was reasonable it reviewed it for substantial it's a judgement by the borders towards reasonable force not a that would be an issue of judgment i would call it's not clearly law or fact yes regular agree on that but the the other issue reasonable time that that president had been established for nearly ten years at the time this agreement was put together and it's been established for much longer than that since that if this court were to rule that you know suddenly that that rule is not in place that the parties have a responsibility instead to do the opposite but if they don't want the duration to be indefinite for the entire length of time contemplated but not written down by the parties in the agreement that would overturn quite a lot of settled really don't have to go that route because the real question is whether it was reasonable for the government to unilaterally change the terms of his settlement agreement there's no question that they're could marry willy nilly there has to be some good reason for them to make it you're familiar with illusory contract that is to say if the government went into this could change its mind any time wouldn't we think that's an illusory contract if it went into it with that intention but i mean the fact that the government has performed for sixteen years suggests that it did not suffer a potential retaliation from supervisors and other people in the songs san juan facility and perhaps the question is whether a sixteen year period is a long enough period for that risk to have him disappearing for example that the supervisors who were there at the time and who might retaliate against him were no longer have the same law so it isn't that sort of a relevant consideration here as to whether the reasons of a rise to the transfer have been dissipated over the last sixty years that might go to the well st of all your juan was judged i was just suggesting would be inappropriate given the context in which he was sent off to promptly i was certainly that could be a relevant consideration that that could be raised by the petitioner in those circumstances is something to be considered by the for it but the fact remains and i think it's really difficult to argue that the petitioner as he asserts here didn't have the opportunity to complete discovery  way that i'm inclined to allow the petitioner to have additional discovery is if i suspend case processing in this matter for thirty days and during that time discovery should be partially completing discovery should be formulating any additional materials they want to put into the record and at after that we can resume processing then after i don't need to remind you that part of the time period was taken up by her care and in fact so when so the case was then suspended for thirty days and resumed on about day ninety seven dollars which was in early april which meant you know if you could do the math that by the end of april the judge had to decide the decision or decide to cakes and the judge at that point issued the order saying if you need more time past april you gotta let me know i from all of those factors it's pretty evident that the petitioner should have been on notice that it was the administrative judge's fault because there had been no deadline he said it had been a mistake on his part that's all unless the court has further questions we respectfully request that the decision to firm think  sixteen years to comply so it was an address specifically replying and there was an address the question is in the reply you do address the question of whether the reasons whether whether the reasons behind the transfer that being a hostile environment for him in san juan whether that condition still exists did you mention that in this reply brief that we're looking now it regarding the whistle directivity no it was we