of the administration to comply with its own regulations and to a due process issue let me deal with the easy one first that's the due process issue it took nine years from the time of mr carpenter's first petition with the federal railroad administration until the final decision by the federal role of administration to issue decision by any stretch of imagination i believe that a nine year delay violates due process under the own regulations it states that it shall provide a proper determination of all material issues assuming you're right that there's a due process well akin to any there is not a raising it then well equitable powers of the court i would hope would enter into this and direct the federal railroad administration to require a another examination on behalf of mr carpenter the court certainly has the perfect little powers to do that or at the very worst three manned it back for a proper consideration of the doesn't have a chance as a practical matter if it takes another story for whatever years to have a final decision by the agency now if i may direct my argument to the substantive issue of whether or not the federal railroad administration violated its own regulations the regulation on its face to fit his very clear that the administration is a hearing officer he must provide for a prompt and fair determination of all material issues in controversy and that a de novo hearing to find the relevant facts in determine the correct application of this part to those facts now the the f r a is saying well because he can't he meaning the administrative hearing officer can't give the release that really requested we requested that there be a new opportunity for him to apply for the certification the f r a's the position is that what does that mean you get to take the test over again two aspects one is they admit they have remedial powers and in fact they exercise remedial powers for instance or what if they don't well at the very beginning of this case they exercise a limited remedial power and that they allow the railroad to correct a violation of the regulation in that it did not give him the opportunity of written knowing what the vile what he thought ailed to comply with wh depends on where the limit is on remedial training what do you have any other instances where they have detained has exercised remedies that you're asking for oh well your honor at the end the regulation itself it requests the petitioner meaning mr carpenter here to explain the nature of the remedial action saw so if they can't if can't grant remedial action why do they ask for it if they don't cite anywhere in the regulations that there is any limit even in their notice of but i guess what i'm asking you do you have any instances where they've interpreted that to mean what you're asking it i don't know if i if they had any other cases like this i don't know the history because these are not public records they're not presidential and we don't get the benefit of knowing what those cases are but in the end there notice appropriate remedial action if it takes noncompliance that's an excerpt of the record at page seventeen now even assuming that they could not grant any remedial relief they still they the administrative hearing officer still under the regulations must make a fair determination of all of the material issues here he failed to do that and the reason for that is mr carpenter and they that i think that there was some sort of joint statement here in terms of what comes lawyers who are requesting now are you requested something that the lawyers never requested at the time not your honor i think i should point that out because obviously if it's different if you're coming after the first our ninety six then ask for pretrial the administrative hearing officer said submit some issues that should be addressed at pretrial asked the court to make that specific findings because obviously you can get mail that that at the other end if you request the court to do it the court doesn't do it and then you don't follow that path and ask the court to do it at the initial joint statement of issues for trial i set out five or six issues at the statement of issues where pretrial the the hearing officer  conducted a pretrial conference and he said i want everything on three of those issues only he did not include the issues which i had raised whether or not  i mean whether or not the carrier fails to apply with the regulations and i cited some various regulations that we allege the carrier violated in the program and then whether or not he failed the simulator testing and whether or not he was affor adequate training these are the three issues he did not reach ok jack sure will i file the appeal what now did you have jack in there and stay for the trial this was in the pre pretrial stay and at the pretrial stages like what we're going to limit what the issues are we going to be limited to ok so just so i understand your position correctly  remedy is through the railway labor act and if he had only made findings of fact as we requested in our statement of issues for trial we could then pursue the before a board in the railway labor under the railway labor act the government can still use that so it doesn't matter as a practical matter whether or not they  authority to grant the really specific relief or not that doesn't conclude his obligations under the specific regulation he had of the term he had to to determine all the material facts and they admit that he did not reach those there's no issue there he says that he just ignored it because he said i can't grant you the relief that you want but that doesn't end it because of the railway labor act the relief that we could get requested some additional findings tactics that were not made and and that's what i was trying to address is quite there was there a waiver issue there are what he did he had some   of the review of the certification decision which is limited to determining whether the decision was proper if in fact the the perspective engineer did not have the skills to to become certified did not pass the test then then it was proper to deny certification and the agency is does not get into the other aspects of the railroads employment of that individual and any rights for them to be or not be in the training program t with the record shows as best far as we know i mean he may believe otherwise but it seems that is the his concerns were with the training program generally and and how i guess how it worked out for him specifically but not necessarily an allegation that he was treated differently than other people who were in the in the training class with them europe position today seems to be different from the position you took when you took your lead to these different issues as being definitely that the issues that john that each of the parties wanted to have to have considered we had not yet at that time briefed to any of those issues to go to really to fully have the hearing officer decide the scope of his authority found so we had that we had and including evidentiary issues that that needed to be considered and at that time the resulting list of issues were the ones on which on which he ultimately ruled and found that there that the only factual issues that direction i guess the petitioner to state what remedies he seeks in this process right and if it's the only thing you can get is a ruling certification decision is improper at the back that is if that is the fact aware of any other cases where the agency has interpreted this differently that there are other remed that that we had no means of making sure that qualified persons were operating locomotives and so as a result of that was really the agency focus was simply to make sure that people who do get sort of pis are actually qualified and i consistent with the statute and with the with the regulation one promulgated and that the the remedy that is also is also consistent which and that remedy would be if appropriate a determination that feature of the case of decision to the agency's part to set my parents to have been due to mr carpenter yes i want to respond to that sure a large part of the of the delay actually was consumed in the discovery process mr carpenter requested  significant substantial discovery from the railroad f r d was really not a part of that process in that no one asked for any discovery from the agency nor did the agency ask for any discovery from an anyone and so much of that time w you got into a little bit with with mr mann there was an initial decision by the locomotive engineer review board which allowed required the railroad to provide information to mr carpenter on the reasons that they said he failed his task that as far as the agency was concerned was a final decision on that particular petition there was nothing else before the agency at that time until he again came back to the board so to say that the that the time period begin with his initial filing is void that would not really be a correct calculation of the time i mean there's there's certainly no getting around back to did take a long time but our position is that it wouldn't wasn't nine years certified right but that issue that issue was not there when there was nothing raised before him in that statement which directed him to any any evidence related to that or to chill that was i mean  that after nine years it doesn't make sense doesn't it well if there if there were no issues before the agency that that that could be ruled upon then that was done the finding was that there was no evidence pointed to take nine years to discover there's no happen here but if if something like that had happened then that evidence would be presented and the hearing officer might have made a determination that the certification decision would improperly be written and we need we have to review the record and we have to make failed both times isn't that what the record shows affirmatively yes he did in the appeal he said he raised questions about training any race question about whether he should have an opportunity to be retested the fact was qualified or was not qualified he said so ye listed but i would also just point out that in addition to that mr carpenter had another level of appeal before the agency after the hearing officers reviewed and if his if his concern had really been that in fact he really believed he had passed the test and made met the qualifications for f the first year honors as to the time delay extensive discovery there were only six depositions taken over a period of four days over during the nine years lapse and it's me you can argue that if you'd like but the record is pretty clear on what happened and why there was a delay of us questions and yes the whole lot of us get many more than the normally ask if we withdraw an inference they delayed in answering your questions and they delayed so ask whether or not he failed the test twice twice yes the answer of that that i have to you is no the evidence will show if we have the opportunity to show it to the hearing officer why he did and the parties stipulated that the depositions could be part of the evidence in this case that that's where it is and the testimony of the plaintiffs how the procedure failed the simulator testing and whether or not the carrier complied with several regulations that deal with the training program training dealing with the simulator state of the issues for trial is railroad failed to comply with after the regulations regarding training and testing she did not include the word petitioners we are alleging that the training and the regulations as it was or was applicable point seven and what i'm suggesting to the court is the a h o did not make a finding of fact as to whether or not the simulator testing was accurate or not conditions or what you mean by what it was that there are certain at a certain problems with the whole procedure itself whether or not it was working properly there is evidence in the record that the simulator machine itself was not operating properly and we need to establish that have the opportunity to establish that we weren't given that