regarding a settlement agreement which was entered into in one thousand and eighty four when this special was reinstated to the department of transportation following her removal during the pack of strike that the the agreement be interpreted and therefore enforced in light of subsequent events possibly but not that the  re characterized what we were asking for essentially  was and we did come as the court knows we had come to the claims court we had come to this court this court made it clear that any relief we were seeking along this line had to be from the board and so after trying other remedies we ultimately went to retroactive to january first one nine hundred eighty that the time that she was had been separated were asked for two things at the time that she had been separated be classified as compensable leave rather in force missed the shelves ability to claim periods of time when after she had been reinstated that they declare that those she could repurchase as leave by back which is a benefit administered by the department of labor after rejecting the petition twice the board finally remanded it and   the government did not invoke that language is constituting a waiver of our ability to go to the claims court and i would suggest to the the department did not invoke that paragraph six as a waiver when we were before the board a waiver is an affirmative defense and that affirmative defense levy has since she released videos leave from protecting it's sick it's a waiver with respect to back pay in excess of what was granted by the agreement and we're arguing here and i i suggest also there's no finding on what i'm about to say there's no finding to the contrary by the merest system's protection for the the agreement provides that mr shell cannot obtain backpay or back pay act which allows somebody in this purcell's position who has been reinstated to her service with the back pay pay differentials in benefits to which she otherwise would have been  will result in all likelihood in the balance that she will owe to the agency rather because compensable time is paid of three quarters or two thirds depending on your tax status but if it's  understand the us when we started in this case where is she wants to reclassify something that was whole back pay and the agreement which she signed and now she wants to change back pay and  i think so but i can't think quickly enough as to how i think the the difficulty is that backpay comprises pay differentials and benefits o p m has has t i know you said you heard this the argument you're briefed yesterday make the a c s contributions which it's not contributions that the the appropriation by congress is to the agency for that purpose the the agency then makes a benefit comes from the employing agency it doesn't come from the department of labor the department of labor does not have a budget and is not given by congress any funds to pay this money the funds are appropriated to the department of transportation in this case the officers yes deal well no deal well approves yes but i you know the final argument in my in my reply brief is that and the board to the department of labor the information that the department of labor has requested the department can't demanded from the f a a they requested in a page seventy six of the joint appendix was money she but and there is a step back so i supported him because o w c p would ask the agency for its information regarding the employee's status during that period and any leave that they had taken based on that and based on what the employer and her to repurchase that leads since it's three quarters pay the employee would pay the agency twenty five percent of the salary she had used during that period and the agency would return to her leave accounts all of the leave that she had taken that that's covered if he learns and some rebuttal time i do i just if i could just in this instance the o w c p a asked repeatedly for the f a a to provide them with that information and the f a a has never done it and i find myself in the position of defending  finding by the board that o w c p is not issued the finding we seek when the basis for the failure of o w c p to make that finding is the agency's the respondents failure to provide the information necessary may please the court not only is ms cats who shell seeking to have the f a a do something that's not required by the terms of the agreement she's seeking to have the f a a do something that only the department of labor annual leave is completely irrelevant and unrelated to the period of time during which this catch was removed the only period that's relevant to the settlement agreement during the time she was removed she was not using sick and you believe employees that are removed are not using leave so then bring this claim that's included in the joint of candidates it covers a period that begins in one hundred seventy five before the removed the agency wouldn't have anything pertaining to that period of time she wasn't on their books until a w c p makes a determination as to whether she's entitled to any coverage of benefits for the period of time to make that decision and it's not clear to us that they have yet made that decision and in fact they have not yet made that decision miscasts michelle basically conceded that it by arguing that the frankly i was surprised in my experience they're reviewing in two thousand i don't ever get involved in cases that directly challenge that i it looks to me and i can only go by what's in the record here that odeh b c p is waiting for something from miscasts michelle is her burden to establish to the agency and p to department of labor that she actually was out of work because of her compensable injury but even if that were the case that some point they say you haven't provided information therefore you cl it's not well they did send her some letters they did send her some previous letters saying they prove some benefit they did approve some benefits she was able to get i know there was a some time in one thousand and five she also got some sick an annual leave that she had taken they did decide that some of that was covered by oh duggie c p again that would not have fallen within the time period that she was removed because she was using second annual leave so they did grant some of the benefits that she was seeking apparently she is seeking more because she's seeking some benefits during the time she was removed but the record before the board in the words said this they said there's nothing in the record to show that o w c p has approved her claim for benefits for any of the time period that covered decision finding her entitled to benefits for at least some hearing aid covered by the time that she was paid back pay and the board properly found that they there was no evidence that either they had done that given that there was no authority for the board or the f a a to re state of shoals in which the court addressed particularly whether or not the classification of all o w c p benefits in the category backpay is permissible by by anybody other than the department of labor and that is another service in this known precedents i understand it's not presidential but it's the only decision it's the only decision addressing the question that's here which is not whether an employee can get a court to issue a ruling that she has been injured that she isn't titled to relief under o w c p but rather if she has been paid whether that paid can be classified as compensable leave and the court the third circuit said that they could because the back pay act allows for the classification of o w c p benefits as a component of back pay as has o p m and finally i realize with respect to whether the board has the power to do that the board has the power to determine whether where an employee has been given back pay whether she has been paid back pay consistently with the statute and regulations and we say that and that's spent to far over us at the f a a they've said that since the the air traffic control strikes here where the employer is asking that the back pay that she's already received be categorized as o w c p relief  believe that the board and the courts have the power to do that