time and then i would urge you whether here or in the tenth circuit or elsewhere to appear on time that also gives you an opportunity to observe in the individual court how the procedures work in terms of timing and that sort of thing and i think you'll be more comfortable and i was nervous if you have a chance to sit back and kind of see what the other lawyers are doing so get here early all right right now appreciate your consideration all right you make the  be quite frank with you there was some confusion on my part as to exactly what was part of the district court record and what wasn't and i dealt with the litigation division department of the army in washington d c regarding what was  was not part of the record and tried to come to some kind of an agreement and or standing on what was made a part of the record was never really able to do that and so i apologized for including parts of the record and thought i had come to some kind of an agreement however there was a succession of attorneys assigned to this case but you agreed that we can't consider something that was not part of the rocker well in this case i don't agree with that because i feel that rule thirty does allow this court to consider particularly in this case  because we have an e l t hearing transcript just three volumes which judge truth very clearly rely in part in great part actually on judge of tools opinions in that case if there is something beyond the record and you think that we could take judicial notice or otherwise then the procedure would be to ask us to do that otherwise our pretty clear rule on the federal level is that it's not the district we're not going to look at it because we don't answer mark or make an impact findings here all right and it also the position at this point that it is too late to do that i'm not going to tell you one way or the other ok the motion is pending to strike made a response to and we will take a look at that ok well then i would be glad to look at the case from the viewpoint of the adelies brief and to take it from there because for the most part the argument and look at it from the perspective of the release brief and for that we look at the citations that they include and i think even in looking at their statement of the case as well as a statement of fact i still believe that there were material issues of disputed fact that judge caruso decided improperly in this particular case and i think that's al standard applies and there were several points in which judge her room stated facts in his opinion which are not supported in the record that appeared at least to be before the district court such as th period of from one thousand nine hundred twenty you have to do it within that forty five day period and it has to be processed first of all the evil office of the army refused to accept your complaint and still today professor there was no evidence that anything like that was ever alleged ninety days correct no she did not and that was based on the ninety three opening right so is there any do you have any case law or authority that you your right to sue you got the ninety days but at that point we have no idea what the office of the army has in terms of that complaint or evidence related to it no but you don't need to win your case when you pass you know minimum pleadings well at that point she wasn't represented by an attorney now not before the ninety days began not during the ninety days and not after the ninety days expired so you had a pro se find out she had no evidence at that point she tried to have an attorney i do not believe that she had an attorney let's see this is ninety five because march seventh when i believe they issued the ninety day letter so that was assume for a moment that we look at something in terms of she didn't have a lawyer she didn't understand something the ninety days well she still has a lawyer in one thousand nine hundred ninety five and so there's not a lawsuit filed until one nine hundred ninety nine female employee in our we have carol yes tara who is placed by the army by the employer or into a group who has a sterling record into a group of and so there are these eleven employees who are going to be risked and they are all in the hospital context and there are going to be risks and they're all subject to the same standardized evaluations policies and procedures and the army says that that's what the army said on september the twenty fourth when she was discharged that she wasn't rest and that maisie german retired and because of maisie german retired complained to emily franken before their referring only they all had a chance at another job and they were all given other jobs so if you want to have some time for rebuttal i do i'm sorry thank you thank you at that point that there was any discrimination that was being in effect so whether she went there simply because those were friends or people that you thought were sympathetic or might be able to influence the process it was simply her concern at that point that captain leader major thompson was not going to open position for one called o p m people as opposed to local and there was no allegation and this is the finding of fact both by judge crude and by the l j that discrimination was ever put into issue that point so yes she went to those people but there's nothing in the record that i'm aware of that can be specifically pointed to which says that you went there to complain that she was being discriminated had been represented by a union representative obviously someone very knowledgeable about what was going on and in any event whether she was represented or not it was there in black and white in the letter to her saying you have ninety days to sue about this part of your polling and so the fact that she happened not to have technical legal counsel at that point really is irrelevant she was on notice to task which she was supposed to do and she did not do it that's not technically in the record that went before judge karoo thought there are in fact documents from the e e o c following her decision addressed to the same address where she's always been well on that record i've been struggling with this appellant seem to make the argument to me that there was some way that the court this court could look at e e o c records that were not in the district court are you do you have any authority for the court for that proposition i think the rules exactly the opposite the whole point of the rules and how they define the record in the excerpts of record is that you only get to look at what was in fact before the district court  the other stuff that was in there but again that's with the caveat that i was focusing on what i believe the property before the court and i didn't try and get ready to rebut all the stuff that i didn't think was probably before you when you clarify something i'm not  received information from its higher command that they were going to sustain substantial reductions for the following fiscal year and so in order to meet that problem they memorandum there from colonel serrano to their higher the commander of the hospital explaining how they intended to do this as a result of that a number of people including his german in the lab came forward and said  there is going to be a rift this is a good time to leave and so as a permanent employee he she was allowed to take this voluntary early retirement with vera but as expected explained then in the testimony gina the temporaries in that same series must necessarily go as well and that's what happened was asked there because ms german was going to go as a result of all of this impending rift activity hers was going to go to but the main point is that none of this was engineered or decided by captain thompson the only one who is alleged to discriminated it was by this council of higher ranking officers were saying we have to confront this management formal risk in the sense that a permanent employee and was forcibly sent out the door didn't happen and managed to avoid that but at the same time there were substantial budget reductions and number slots primarily the temporaries which means astro's one hour reduced now as far and i'm kind of getting ahead of myself but as far as this whole similarly situated issue what we find is that she was it was situated with anyone else her she was quite different in that first of all she was in a technical position whereas all the others clerical and that is a significant factor because the point was made in the testimony and i cited you too by colonel he means the hospital commander that the clerical people because of their direct impact on the faulty patient care to the extent it was possible he wanted to salvage those slots and so that's why those people ended up in some instances not all being made permanent they were able to shift their slots and so forth but they were involved in a direct  and worked in a different department supervised quite different and if that's wrong exactly and that's the other major point about this similarity issue is that none of those people were in fact supervised by captain thompson and so whatever his motivations may have been everything that is happening is on a hospital wide basis and our granger didn't have any say in what happens with the other temporary employee machines which allowed them basically to accomplish much more efficiently what they've been doing before and so the testimony was that by that point some of his surprise captain thompson found that he was able to get by without all of the going out the door apparently was connected with the fact there was this impending rift but that was her decision it was an objective neutral regulation is that all these positions have to go and the matter of fact it turned out that you actually treated better than the originally expected in that she was allowed to stay through the end of her one year contract period to september of ninety three rather than actually having to leave  person who had a specific period of employment eligibility and she's basically arguing that the government was then required to create a position for her or to continue to employ her wh in to summarize we have essentially two planes in front of you if you will subject of planes the first one simply out the door it's gone because it was never pursued in the way that it should have been pursue extension of her temporary status where there is not only no similar situation to other people demonstrated but most importantly no causal connection all of the situations that resulted in her not having a job were not by captain thompson they were by the quality control counsel and by the neutral regulations and by ultimately the fact that he passively found that there was no need to reestablish the job there's no right to have a job reestablished and finally as far as the kind of discrimination that's been suggested that underlies  became eligible through going through the opium for vacation process to apply for the position in the first place and as a matter of fact the decision to let all  army called it and that's why she was terminated secondly on the issue of retaliation she not only filed a complaint with the e o office and the eat office is the army it's not a separate division not only in the spring of except in what you said well it certainly would seem unfair if they expected her to file within ninety days one thousand nine hundred twenty but they didn't do that they went over to ninety five so the right to then i'm really against you on that you can use the facts regarding that attempt to file in early one nine hundred ninety three in your discriminatory terminations claim and the retaliation claim you're not precluded from doing that and i mean those are the type of things that parties rightly coming before the court and ask the court to sanction people for in terms of and so you have to be incredibly careful about entering it was a little bit confused at times as to as you know from the ninety day rule with respect to your client but certainly in federal court procedures often make and break our cases one way or the other and so it's important to go look at the district court record it's core but you know we don't have your facts because it's not going to arrive till after this argument we don't have your twenty eight january or because it was a sense that we spent a lot of time in advance of these arguments kerry and i yes field for the future that if you look carefully at the rules because there's a reason for the rules that helps not only the court but helps the client so i trust that you will take that