matters that we raised in our initial appeal and then go to the matters that were raised in the government's brief at issue in r s zero four one once one six six or seven is whether the v a can properly bar d fully addressed the precise issue in question in this regard it bears noting that congress narrowly defined professional conduct or competence to mean direct patient care or clinical competence by these adjectives the pound submit the congress intended the professional the absence of any legitimate health care consideration in the medical center reno's decision to remove surgical duties from doctor several of them to reduce especially if appellants were to prevail in any arbitration the arbitrator would find that the you're a terrible surgeon and you killed three patients and your patient care is terrible to decide which of those two things is true don't you have to look at the patient care issues to determine if the pretext to all or legitimate you obviously have to look at them to see if they're pretextual but you're not inquiring into what is medically correct or and don't you have to to determine whether that's a legitimate i mean my example it's obvious you're not supposed to kill patients but the issue could be more subtle and i wouldn't necessarily require some determination about whether in fact the patient care was adequate because  in adequate then it's you know that it's a different how common then if it was in fact adequate so to determine whether it's pretextual you might have to determine that it was adequate medical care patient care well i think what we're focusing on those the hospital's reasons and in that sense i think what we would be looking at is the credibility of the hospitals assertions and in so far as the hospital may have medical argument in support of that then i would agree but in so far as the medical hospital suspicions doesn't stand up to credibility reasons i would respectfully say that that would be a separate issue and again i think the difference is there that in any discrimination case the burden would be on the employer in this case the union to show that these reasons were truly pretextual again i think ruling after an award was final and binding and that case is now on to the d c circuit and that grief briefing starts next month but there isn't isn't that the present view of the v a they can do whatever they want well that is the present view again we would submit to pick picking up on the discussion the judge gruber that the application of the professional conduct or con competence exclusion turns seventy four twenty two inside out because what it does is allows for installation of a decision not based on legitimate healthcare needs to be barred from the grievance procedure without any factual judah cation establishing any legitimate health care or consideration was was present and we submit that the purpose of the exclusion is still insulate legitimate patient care considerations and not to render decisions on reviewable even if those decisions are not based on any patient care consideration whatsoever  without again being tested to the level of adjudication and again a nother problem with the v a s approach in this case is that the v a under secretary has basically decided for i think if this were a place where a doctor had not been certified for example and doctors have had been certified want him to see a loss to sort of the case i think we would have a different i think we would have a different example for various procedures  and again what the issue is here is not necessarily what dr sam wagner was qualified for to do both here the issue was whether the decision of lawful discrimination from that perspective what we're saying is the inquiry goes not to whether he was qualified or not per se but whether or not the hospital used proper medical subject of the grievance the subject of the matter being submitted to the arbitrator for resolution is the v a s motives which we think is a distinct question from a bald assertion of  certification so if the answer let me just track this through if the theists answer is here are the records showing that every person who has worked for ten years has to be recertified no matter what their age your grievance would  age correlates with direct patient care competence what would you do with an assertion like that from the v a yeah well under the age discrimination act and again it's six thirty three  which is federal employment structure which is unique from the other provisions of the a b a in the private sector there is for example functionally no mandatory retirement no mandatory separation and again we would submit that the reason for that is that you have to judge an individual on his or her merit not merely by chronological age and so in that sense if there were a policy that distinguished older persons from younger persons without regard without regard to their competency yes i think that would be fair game right i think would be a big thing in hospital doctor dr sure i would prefer i appreciate i appreciate that for what it's worth one of the factual assertions that we would raise services at the hospital was a peer review process rather than administrative theeye where other people weren't other peers were in fact looking at his or her confidences rather than just what appears to be in this case to  point that the the point where were we some of the line should be drawn is quite simply where there is a supposition that age or age alone and that would be all that would be would be the issue and that would be all that we are submitting to the arbitrator jurisdiction and the the cross appeal issues i can say sort of briefly on the jurist jurisdiction issue the government raises their reliance on seventy four twenty two we submit it's misplaced because that is the venue provision going to f l already decisions involving the in medical professionals and we think the discussion of the progression of the legislation as well as other arguments in our brief addresses they are there was also an issue involving the exclusion of  based on compensation the seven hundred twenty two b three exclusion we submit that that only goes to the establishment of compensation rights under title thirty eight of the us code which goes to establishment of pay scales or pay rights as opposed to the compensation of an individual grievance and if the grievance is to receive pain accordance with the scales of the a already established good morning your honor is may please the court my name is greg abbott and i mean assistant u s attorney for the district of at in reno it was my privilege to represent the department of veterans affairs officials before the district court as well as before this court protect employees such as the doctor in this case for discrimination so that a person could not be told i'm sorry i'm sorry because you are old female or whatever it may be at the same time there is discretion to decide on their professional conduct and the standards for professional con my concern is that the implication of your position is that if a person were in fact fired or demoted because of a prohibited reason all the v a has to say is oh no we think it's professional competence and then no one would have any authority to determine whether that's true or false and is not true in connection with that also the undersecretary for department of veteran affairs doesn't have to even doctor could be a big former was a ruling upon the care of the under secretary of health appointed based on qualifications presumably but you're correct that it could be i think form pardon me i don't know whether i don't understand the problem who was the president of the secretary or the secretaries in the dreams have if it's true that professional competence was the concern then nobody gets to second guess whether you get three mistakes or a patient mistakes before something happens to you but if it's purely just fa health and that determination as a consequence the arbitrator either dismisses the appeal which we think is a would be a foregone conclusion at that point and then the grievance can appeal that forum that's available to discrimination claimants to go through the e o process that would either proceed through the e e o c itself or to district court after the exhaustion of administrative remedies before the e but so clearly that form is always going to be available that's going to be available to this particular doctor if we go along with your argument and you're going to not going to raise the age discrimination sex discrimination whatever it is they may proceed through that statutory remedy and the forum that's available for those remedies dr several had the same remedy available to him the same form available to him and he actually process and through the circuit court of appeals review process that's built into title five so wonders why should a medical professional join a well the medical professional true that the government has decided that you procedures may not cover or apply to any matter relating to that patient care i mean i'm paraphrasing but somebody has to decide whether the grievance actually does cover or apply review available of that determination in the d c circuit court of appeals and going through that process of the determination is made it's not reviewable by the f l r a it's not reviewable by the arbitrator when the determination is made one of its ration is still pending the grievances still alive now it again it may be a foregone conclusion about how that administrative process is going to can i don't understand that if the question is whether the grievance prejudging the grievance were not denying a proper forum for that discrimination claim and were simply saying that that particular claim must proceed in a particular way now let me ask you another question let's suppose someone goes to the of the same statute and you say you know you have this matter may not be reviewed by any other agency so the e e o c could look at it either and if we were to follow your line of that would not occur for the following reason the seventy four twenty two d determination is only made in the context of a grievance which is then pending a grievance that is initiated under the collective bargaining agreement process so with the matter what went through an informal complaint and then a formal complaint to the e e o c third never be a context in which the v a would be making a seventy four twenty two d determination that determination is only made in order to close off the grievance process under the collective bargaining agreement and so the e e o c would have the discrimination claim before it and it could make whatever decision it made concerning the merits of that discrimination claim the se ty four twenty two determination what what what is the difference why then do they have this the so why is the v a finding it in this particular case if he had chosen a different remedy who w grazing certain types of claims and they did that in this statute yes and you say that is absolutely clear there's no question that interpretation i don't think there is any question at all that it is broadly that congress technicians everybody else the answer is yes the title thirty eight medical professionals have have been carved out as a special category of employees who m that the grievance itself in fact or that the seventy four twenty two d determination was improper and the seventy four twenty two d determination is made by one side alone  four twenty two determination dr said was job is to oppose that dismissal on the grounds that the seventy four twenty two determination was improper for whatever reasons to establish a are you going to have the right to cross examine anything he says also in this opportunity let me answer that question first dr several of acquiesced in the dismissal of the arbitration and made no presentation in opposition to it because he was trying to get somehow a resolution of the discrimination claims and the avenue that was available to him that was always there vailable to him was to correct in other words why don't you turn around and tell the union representative right now that the v a has determined since they have this power th determination that's made and that legitimate basis that evaluation of the legitimate basis by who whom the person designated by congress to make that determination and i would of the discrimination claim what they on the basis that the determination that was made by the v a was not compatible with the statutory authority to make the determination the other words you want the an arbitrary and capricious determination i'm sending it back and we're sending it back to the arbitrator how many opportunities do you think are going to say oh well i have looked at this and i disagree with and make a determination based on the merits of the claim determination whether it's arbitrary and not on the record that's what you're looking for according to your idea i'm not sure you just and the idea that that's a half baked record the record consists of whatever the parties choose if the seventy four twenty two determination is reversed overruled by the appropriate court then it is it is a limited no no this is that the in order to get it reversed you have to get a record made you're saying ok they can make the record correct so you have a hearing right you have whatever is necessary to establish your record correct oh boy why isn't it possible that what congress has said in this whole series of statutes for most federal employees who have a discrimination claim they have to rule out that they can fall if they're covered by a collective bargaining agreement one has to grieve it one has to go to the e e o c under the statutory procedures but for this class of employees their sole remedy is going to be under the c for whatever policy reasons they've chosen to carve out for medical professionals at the v a if that's congress's decision what's wrong with that well there's issues of these medical professionals we're going to let the e e o c do that and you can go to court over there and all that can be dealt with left of bargaining agreements from the federal sector a congressional grant to period no question about that  i just want to clear up sir because i think there respectfully i would say i think there's a confusion of sort of like the merits in the sort of the jurisdictional argument seventy four twenty two d and i just want to make that clear in this case when the under secretary issued his seventy four twenty two do you ruling seventy four twenty two d by its terms as this trial not be reviewed by collective bargaining arbitration is a collective bargaining device it also may not be reviewed by any agency so it can't be reviewed by the f l are right because seventy four twenty two each does not discussed seventy four twenty two determination but discussed as many others under seventy one twenty three of title five which are f l our right decisions and as we just explained in our brief the development of these two subsections occurred separately the option that the union had was to ask the arbitrator dismissed without fully resolved with hearings trials and anything that you need and i respectfully say that we disagree with that we don't think that seventy four twenty two was expansive and if i can build on that per second op remember the origin of seventy four twenty two was from a d c circuit decision called colorado nurses and then d c in the d c circuit in colorado nurses there's no collective bargaining rights for medical professionals again it was contrary to the thoughts of various parties but that was ruling congress and the act in seventy four twenty two in response to the colorado nurses decision was clear that they thought there were some things that ought to be off limits from collective bargaining and grievances they even if the section of the collective bargaining agreement doesn't relate to patient care if the grievance implicates and it's pretty broad language i need to answer that question  there are exclusions to v a medical professionals not a political to federal workers in general however the general proposition is to restore or provide depending on one's point of view a collective bargaining or grievance ri make that a pretty here tight box that if it if it if if somebody is going to have to look at patient care issues it isn't going to be done through the collective bargaining crap process period including the gr you look at the grievance you determine what the grievance would what would happen if the grievance were sustained at the bargaining proposal word and if that means if they have allows for the maintenance of day direct patient care clinical competence considerations then the grievance can go forward i think that is a more reasonable reading of the statute than the one that we submit invent where the exclusion what care should be provided to patients what prescriptions what what issues like that that was one that was clearly stated in the house report how we're going to treat patients what doctors should do so it's limited to away your privileges or we're cutting back your hours or we're doing something bad to you and your client says oh no that's just an excuse they're doing it because i'm home female etc and so my i think i think if a doctor said i'm a professional i have the right to determine what care i provide this way or that and the hospital says no you don't i think that's a professional conduct or competence matter i think that's something we're we're clearly we wouldn't have the right t even go in the first place and i would probably say with all respect to the government the government can probably afford arbitration a little bit more than federal employee union so i think that in itself is also an impediment so i don't think we're on equal footing which i think is is