honor i have to plead ignorance not having been involved in this case before preparing for oral arguments i apologize to the court if we have failed to follow the court's rules with respect to the covers of the br think there are some facts in this case that need some sedating before we get into a discussion of the long and the first is that the agency seems to assert throughout that all employees in this case had to be furloughed as a matter of agency policy that there was simply no getting around this preordained decision and that there was no discretion but for all of these employees to be furloughed but by the agenc own documents that assertion is incorrect i would draw the court's attention to a recent document filed by the government it's i think page one of the supplemental appendix a just f it's corrected brief and i think they also number it is page two hundred forty of the joint appendix and this is a document called processing guidance for managers and in this document this is what the agency says that some employees will have a right to reply fifteen days right reply quote to provide a justification for being excused from the furlough so certainly there was right within the agency's own documents an indication that there was guidance for managers and two four zero yes  under the heading guidance for implementation see about halfway down that paragraph the agency says that's not on please have the right to apply those who do will have fifteen calendar days to provide a here is that the individuals that were named titular lee as the deciding fishelson opposed dest no discretion no authority for example to exempt anyone from the furlough which means that process is the ability to get to the discretion of the decision maker before there is the deprivation and that didn't happen here because the individual's name doesn't deciding  officials in reality weren't deciding officials and this is beyond this is beyond dispute the government so do you agree that if there was no discretion with respect to the fir was that there was no error here if there was absolutely no discretion if the facts in the record supported that then i think we would be on shakier ground judge doc but there are a couple reasons not just the one i mentioned but a couple other reasons to show that there was discretion if i may address those briefly in the notice of the employees giving them their rights to reply to the proposal the notice as if this action is template letters they had there were i think a few to couple different template letters they could modify the letter they couldn't modify the decision that is there was no authority contrary to that for example like the secretary defense gave to his subordinates in the in the goddess case there was no authority to exempt someone from the furlough your honor no authority to reduce the days no it's starting to reduce the hours and the testimony is quite clear mr major testified for example that the following i did not see my role to review any responses with an intent towards making any independent decision goes on most of the t answer my question the vast majority i don't care about the ones that you see that's not the relevant universe the vast majority of the responses were boilerplate and did not ask for exemption of the individual employees i cannot concede that into the record and those have been placed into the joint appendix by the parties and those that are placed into the joint pentax show that there were individual issues that were raised by the by the employees one employee for exemption the boilerplate portion did not it made arguments related to contract violations etc that would be correct or on but those that did and many employees in the place as in the emergency response program i work in i'm constantly receiving it responding to calls and inquiries even when i'm not that doesn't need to respond or in a certain week these communications urgent in nature and the agency's mission will suffer if not attended to immediately this is the kind of information that should be presented to somebody with discretion so that they can make the decision whether this is a valid argument whether this employee has presented a circumstance where there will be harm to the agency's mission if he is not if he is not exempted from from the for a lot there is a the agency also indicates factually in this case that the role of the human resource department and the general council in providing a review of the responses and the and the various letters that that constituted really review of their responses the arbitrator's decision i believe page fifty one of the joint appendix that the decision makers had no discretion and runs afoul of mr major's testimony and ms giles testimony imaging that this decision was made headquarters and they had no discretion therefore any role that the human resource officers play or the office of general counsel to to put the responses together in a way that seemed to comply with the law is certainly not all employees i think with respect to the issue of discretion and that is the extent of this furlough the need for this furlough was constantly under review by the agency if you recall when the agency first announced this furlough it was going to be certain days and then they change it no it's going to be ten days and then they change it no it's going to be fifty five hours and then it changes again yet that's forty seven hours somebody all employees have to be furloughed for forty seven hours eventually well eventually that was that was the decision without taking into account any thing that any individual employee said about why they should be exempted from that and the agency has has told us as we've indicated from looking at this policy guides the agency says that employees were supposed to be given the opportunity to explain why they should be exempted from the f was either and an indication that there should have been discretion or it's some kind of sham document that should to the agency when in fact there was not going to be discretion and i would like not to think that it's some subterfuge by the agency that it was a real statement of its policy and its intent but it never carried through because it just did not give the decision makers the authority that they had an authority that we we've seen in other agencies i'm going to ask the government to give me a hypothetical in which they receive a communication and say oh this is somebody rule the didn't depend on individual circumstances there's no point to notice an opportunity to address an issue which is no relevant issue what i'm saying is not inconsistent at all your honor and this is why in this case there was disc the problem was the discretion just wasn't given down to the people that were named as deciding officials in reality the person who have the discretion here because of the way the agency chose to runs this furlough was the agency administrator too had the discretion now the agency had a couple choices here the agency could have done what the secretary of defense did was to delegate that discretion down to two lower level officials or what the agency could have and chose to do here is to retain the scotian in the in the administrators now that was its decision it may be more onerous for the agency in terms of how it deals with it but that was the agency's choice your honor as to how to raft now i'm not so why shouldn't we look at this record as the huge unseen administrator saying i'm not going to make any exceptions because that runs afoul of what we've seen in the policy guidance which indicates that's the purpose of the reply to explain why it should be exempt it runs afoul of the notice that was issued to the employees under five years see seventy five thirteen that says if the deciding official  sustains the furlough the following things will happen again those are either sham documents or they are reflective of how the furlough should have been conducted and rev is going to say your honor is i'm not decisions that basically were not going to be made by the deciding officials but the interests of fairness and efficiency and justice and there were no exemptions what the design of the tool did deciding to she'll serve as a pivotal figure first in terms of being the one that actually issued the decision letters and ensuring that the proper decision letter went out to the proper employees both in terms of the notice of any appeal rights that they may have had but also in terms of ensuring that the decisions that are an individual employee got was a letter that address the individual matters that they raised in their response because those matters were in fact considered by the agency and decision letter is and how that will how that will happen and specifically provides is that label to forty one or also alternatively supplemental appendix to and i'm sorry for the confusion but if this is a forty one excuse the decision letter templates will be provided by the office of human resources employees who have applied will receive and this is the role of the deciding official overseeing the template with a personalized section addressing the employee's reply the essence of the due process of a constitutional due process opportunity to be heard is the opportunity to have that response considered and in this case that's what these employees not the previous consider implies that  it's something more than a automatic response yes your honor and it was more than just an automatic response however it was arrived at by virtue of well i got a being presented the legal experts provided responses that indicated that those legal objections were not valid when there were objections to the base so they were alone so if they if there was no legal if there was a factual response i'm  person charging the fuel rods and they're going to be a melt down that one of the that wasn't a relevant factual response because the agency had already decided that there would be no exemptions and in fact the agency had staggered the furloughs that the days were not in waters that they would fact have coverage and that's why they were able to decide that there would be no exemptions so relevant responses going either to legal challenges which prison which god due consideration by legal experts that there had been a bound legal challenge the legal experts would address finds that or they perhaps responded to the financial circumstances and the financial policy decisions and those responses also received do consideration by the experts within the agency who are responsible for looking at constitutional elements of this the constitutional right is just fine and to have that response considered meaningful in a meaningful time and with the meaning of a manner that this consideration was a sequence variation had caused this wrong yes your honor and that's all right because in certain set in certain cases certain factors will be irrelevant so for example in this court's recent decision in ryan the court said when you are removed because you lack  because we're about right and the deciding fishel was charged with ensuring and exactly in that guidance that i just indicated they were charged with ensuring that employees who applied received the template that it best had a personalized section addressing that employees were five up for purposes of insuring agency like fairness the agency wanted to make sure that also that all responses saying i have an autistic child would receive the same consideration if we had the gentle differences and that that would i think impede the fairness of the consideration and it's all right for the agency to have an agency white house that addresses that i'm not sympathetic to your clients they're faced with a circumstance where they're bound by the deficiency and they're trying in some fashion to maintain a smattering of morale which might still exist in the agency which is why they're trying to follow along with the considerations where they're say that in that hypothetical the agency it's the agency's procedures that we're looking at here and agencies procedures required each employee to receive a decision whether that you're going to be furloughed everybody's going to be for all right yes in terms of individual circumstances that in fact what the agency's decision and agencies there's nothing wrong with that the agency can have a policy that says given the circumstances this the basis of the furlough the fiscal shortcomings the policy decisions made by the administrator this is the policy answer is to for all the employees that ok i suppose what i'm driving at is whether you're able to say we get the best we could or or you're not i think the agency clearly did not only the best they could but what they did the procedures that the that they used both in terms of the free implementation of the for a low and of course there was  opposed implementation right to appeal to an arbitrator and i think that those were not only the best they could do but that they absolutely me constitutional due process because they were given after they were given notice which is the first element and they were given an know and that when basically what you're saying is we need to give and you know some opportunity to be heard because there was many issues here to which people could address themselves because everybody was going to be treated the same way and that decision already been made i mean hope that that's not what i said because that's really not what i intended to say they certainly were given that it's so that's a first ask what they will know that they were given notice that this action was going was proposed and was going to take place they were given an opportunity to raise tall that they were limited they were concededly own limited number of relevant factors that they could raise in their response that they could raise legal challenges to the sufficiency of that notice to the timing of the notice to the amount of notice the information that was considered they could even raise challenge to the policy decisions all of those challenges they could raise and they were considered by the agency by the various departments that had expertise what was not relevant for them to raise was some individual ship circumstances because the agency had decided that it was not going to be a sort of exemption and that's ok that doesn't render either the notice or the opportunity to respond a sham in any way it just says that certain factors are not relevant that's all it says you still have provided them with notice that they can anticipate the furlough and make whatever plans they possibly can make and they can also formulate their legal challenges which they did enmasse they had paragraph after paragraph of legal challenges if they hadn't had the notice they would have had an opportunity to phrases legal challenges but they did they formulated those legal challenges they presented to them the agency agency considered them and then responded to them that was their due that was their present lamentation due process they also had post implementation due process before the arbitrator the supremes or has said of course that what to process is required depends on the circumstances in these circumstances where the nature of the deprivation and again using the supreme court factors and matthew firth as elvis the nature of the difference of the deprivation although admittedly any error in terms of people who were furloughed and the nature of the government government's interest in following the procedures that they develop was extremely strong given the sequester a sion the emergency nature that thousands of individuals who are being furloughed in to to have a right replied i have fifteen calendar days to provide a justification for being excluded from the furlough i submit that that's contrary to what the government is positing that there was no possibility of exclusion or exemptions from the firm well that what the government saying is that you didn't make a sufficient legal argument and one of the responses this doesn't say anything about just being relegated to legal arguments that your arguments and i don't fit the legal argument wouldn't exclude you from the furlough that would just mean you didn't follow the procedures go back and do the right the right procedures i think i think the fair commonsense reading of this language is a justification for being excluded from the furlough would be something personal to the to the employee in the us to be in the differences maybe cases that the agency does not afford an individual with a meaningful opportunity to respond by merely providing an empty process for presenting his defense and that's what happened here and just lastly to address matthews vs eldridge three part of balancing  test the forty seven hour taking here in the delete not as harsh as a as a terminations is still significant it's more than a week's pay people many people it's more than mortgage payment or more than the rent payment with respect to the governmental interest here this case stands in stark contrast to cases like at the i c versus mal and gilbert versus homer the government had seven months here to meet the statutory deadline of of the budget cuts we didn't have the exemptions you see or like a bank examiner a bank president who was lying to f b i c or a police officer who was indicted on felony drug trafficking charge answer the these calls that there's going to be harm to the public and harm to the agency's mission i can tell you that the you know there are more facts in that letter he didn't say there's nobody else who can do my job he didn't specifically but there may be you know individuals who would have that information and that's a that's a great purpose of having a meaningful reply so you can have a colloquy with the decision maker so you can get to that information i'm getting as many thing in the record that shows that you know but there's nothing in the record