v technician he works daily as a mechanic works leader and also serves one weekend a month and two weeks and one day a year in the national guard consequently he's a full time civilian who also spends some weekends and two weeks in the summer usually drilling as i think that have the record let me start off by asking you it's my understanding that you're not appealing the national guard's decision to separate mr d appealing the air force's decision to terminate him because he no longer satisfied the condition of jill that that is absolutely correct we have no authority to address whatever the military's action is i would point that the military decision we have no authority to address that it does not comport with due process principles which feeds into the next argument i would also point out is that is exactly the case that we had the removals based on the loss of the condition of appointment this court in the supreme court face the same issue and need versus eagan as the supreme court found the board has jurisdiction over the action of the employee be removed in the civilian capacity based on his failure to meet a condition of employment even we're the board does not have started to examine the underlying condition but here we have here we have stats choice provision that you're relying on and the stats choice provision is not completely crystal clear because the exemption needs to be clearly no right  before does that story change that's correct and then they add the language when the appeal concerns activity occurring while the members in a military pay status are concerned fitness for duty in the reserve component and i think it's the government's view and we'll hear in a few minutes that you what we're talking about here and the challenge here involved that section and therefore there's no right to appeal no that ninety percent of its brief writing on appeal in the jurisdictional finding which they never raises an appeal that's because that is an important issue but the agency tries to squeeze its remov of mr dyer into a claim that he failed to maintain a condition of employment under concerns for his fitness for duty in the reserve component the agency argument is contradicted in full view but did by their own letter not retention which is supplemental appendix page fifty states you should not consider this nami tension as an unfavorable reflection on your military career nor is it a separation for discharge separation notice then goes on to extend the air force's sincere appreciation forced personal sacrifices and devoted service to the nation the point being is there was no basis for the  status because that's what the judge ended up relying on the judge found that clearly the removal from the civilian position position did not meet the due process principles that's pretty straightforward he didn't get a notice of opportunity to process there but the point and i think you've already made it is that the due process required during that proceeding and no due process was provided during that proceeding no notice of an opportunity to respond no charges were ever decision to terminate him because he didn't satisfy the condition of bill that would judge my and where i had been confused and i kept the judge would have found that that was not due process which he did was he looked and  process in the military proceedings which did not require due process and which did not provide due process and that was the the gist of our appeal was we know that that process did not provide due process and you can't use what the judge found there as evidence to support the due process he was denied in the civilian side of the house that's why it's a little bit confusing and i will give you that that it's a little bit confusing because the judge reached out and found due process in the military proceeding which frankly is clearly not a due process proceeding nor does it have to be you know there's no notice of charges there's no proposal to action there's no opportunity to respond to charges there's just no notice and i'm good at this is just trying to kind of just find this because i think i've been a little bit confused about this too assume for a minute for purposes of this question that the board cannot question the removal from the national guard of your client on any ground whether it is substantive or procedural or constitutional or otherwise then what exactly does the board have before it in the proceeding that you initiated before the board thank you for that question that question is answered by egan and then even what they said was you know if a person security clearance and you know when security clearance is taken that's a much more serious problem than what you have in this particular case it was my security clearances taking action not go aboard and work perform any duties i can't go into a controlled area i can't do anything because my job requires that i perform things that are covered under secret clearance here my clients can continue to work do their job the only thing they can do is play  like seven hundred and nine s for that says a particular the equivalent there would have been a statutory provision that says no other authority including the board proceedings when we can attack is the due process of the employee is provided which was the whole purpose of the statute if i could flip a question back to the court what value would be the statute that point to provided these individuals with rights out there in the regional circuits that draws a distinction between what is reviewable and what is not reviewable under which essentially a military decision about activity in the military would not be reviewable and why wouldn't that and that may be says two things one that a decision that says you lose your dual status position not because you've lost your military your national guard status but because you did something bad on the job in your civilian capacity that would be what this provision would still allow but that's not  continue to work for the national guard up to a year after his revocation in addition to that the the process here has also if you look at the removal letter it also gives him the right to not been disqualified so the question that you present under the particular section that says you know we're concerned that he was disqualified from this particular position by the military is like i said back by the fact that the letter says we thank you for your service this is an unfavorable you've done nothing wrong and will put you in the reserve status so that you can come back and serve the country in times of need like we have now so did create an avenue for board review in certain instances and what it looks like the congress did was it created an avenue where if activity occurred kind of solely within the service member civilian capacity while he was in a civilian pay status that didn't really end both cases military duty that that could be reviewable we think by the board and that would give effect to what congress kind of effected through the statute through door but again still not touching on military fitness issues we think that's why congress added the language you know concerns in this mess for that the right of appeal should not extend beyond the etched in general when it concerns  responded to that by citing the accolades his client upon separation and also the continuing service providing you have a quick response to that right and again i think this actually kind of demonstrates how closely even the question itself starts to touch on issues of military fitness because in order to kind of question the civilian question on why he was separated you have to go to the question of the military fitness now we know abilities he had applied for numerous promotion opportunities and not been granted promotion he had been in his ranks for twelve years and in the military is an up or out type of regime and he had been passed over for promotion each time it was clear he would receive a promotion and within his unit there weren't very many of these positions to give to more junior men so in order to open up these opportunities for more ambitious junior people you know it was perfectly position even once he was out of the national guard in which case maybe there is some issue outside the bar seven hundred and nine can you address that both as to whether this was raised and and the merits of it so the fact of the st part of the question i don't think it was raised i could be wrong but i don't recall seeing that argument raised anywhere but to the nd part i don't think that or recommend keeping the individual on duty for up to a year but it's not something that happens automatically the secretary of the air force would have to arise and justify the retention kind of as an exception to section seven hundred and nine which says you shall be promptly separated but even then at max and this is again with an intervention from the secretary the air force would only be able to justify prolonging the ultimate terminations by u military service member and because your duties are closely tied to your civilian status that when you be failed to maintain your membership in the military you should be properly separated that opens up new opportunities for more junior service members to i guess create some type of dividing line as to what this court should be able to review referring to title five section seven thousand five hundred and thirteen those due process questions we think those authorities are distinguish fitness for duty in the military that's a that's a different question because i think in the even context what you get is there was much dispute that those individuals qualified as five employees the only question then was when it something more limited because of the nature of their employees status that was the question that you didn't want to answer and here you have a statute directly on point that says you are required to be a service member if you fail to be a service member you shall be promptly separated and if you are case like this in total we think that that jurisdictional part should answer the question we think the board improperly narrowly focused on title five without recognizing that title thirty two  much more much more to add to the question and that the board failed to kind of grapple with those questions with respect to the nd part of the case which is the due process question we think that the petitioner is focusing or under seven hundred and nine the service member had lost his military status and therefore was obligated by statute to surrender that position he was given an opportunity to respond with that need as he was given a significant conference with his management respond here in the thirty days he had the opportunity to seek representation if you wanted it and there was a written decision and here it didn't have to be a complex written decision because it was required by statute so we think that up front that you mr bonnie you've got five minutes left or about that thank you very much honor let me point out a couple of things even that is the case regarding fade to maintain a condition of employment in that case security clearances case says national guard military status the cases are the exact same the point that's been made is well there's a statute involved the statute has no real importance because whether it's a statute a regulation a policy whatever it of them have the same effect the due process that we're seeking is with the civilian separation the agency moves free rein to terminate individuals and to claim that it falls under some big large umbrella about obvious point here is congress wants these individuals to have due process rights except under these very narrow circumstances where there's a fitness for duty or military pay status problem they did something wrong with a military statement say we know that that exception is not applicable here because one of the look on language that he got when he was removed saying that this is not a four calls reason that you're being separated and two you're being point just press she said maybe her might be some type of conflict here between the granting of disappear right and a statue to says you must be removed yes there may be and i've looked at that but i have to go with the concentrated language here explain exactly what they want to happen and the intent that they want the national guard technicians who haven't had the due process rights to receive these rights which is evident by the provision that they've going to  convert the rd title thirty two to title five to twenty percent and that is to be increased so the idea here is to move these people because but you have to remember every day doesn't work he has regular civil service job just like everybody else it's when he's not working and he does his weekend or is two weeks in the summer that's when he's doing his military work the rest of the time he's just a civilian maintaining whatever requirements that he has to do you we thank both sides in the cases