represent and we're davos here the petition or other parties here in agreement that edward committed no misconduct whatsoever he was a good performer there's mr of us have any proof of improper motivation a political motivation to terminate him other than the article he submitted to the administrative judge well there's no direct evidence but there's never been a requirement that a discriminator  timing that i mean isn't that the whole plate of the area of wall that this you are not allowed to to move the political point t's into career position at the end of the administration so it's that timing itself or evidence of discrimination then it would only be discrimination this is an anti burrowing in rule isn't it this is a policy of zero pm but the legal standard for deciding this case begins with a requirement for this that's the rule and it's apply uniformally and there's no suggestion that o p m targeted mr of los in any way here is there well that is the timing argument it burrow into the career service right before the administration in its well the requirement is that an agency evaluate such applicants nondiscriminatory manner and that they get o p m permission and there's no dispute the deviation from normal practice is another indicator what deviation practice oh well they were supposed to give him thirty days notice before they removed him but they only gave him fourteen days they were supposed to disclose to official who knew from his work at a prior agency who had no role in the selection when she saw his name on the that's not actually true because she wrote the criteria for the nd solicitation the change and she's one that wrote it and the spanish requirement and she had seen his name on the prior list as well know she not no she did not she recused herself as soon as she saw her name and she added it was a nd what did was she not aware that it wasn't a requirement isn't that the records that it wasn't a requirement and the personnel office said if you want this to be a requirement you have to write it in the job description not just as  a reference in her testimony when she made the decision before she knew i was going to be a candidate but it wasn't a requirement for the st go round my understanding was that it was a requirement for the st go around but i'll be happy to check the record on  the divine pursuit of meister case the federal circuit in which an arbitrator considered a case of an employee who had failed to disclose a prior conviction and other employment in a court absolute statutory bar but the burrowing in rule is not a statute congress has not addressed this issue and indeed this court has never addressed what it means to regularize an appointment as o p m calls are required in this case certain exceptions and the fact that there are certain exceptions means it's not absolute and m s p retains its jurisdiction in the same applies here o p m said that you can get a variance there's a regulation that says you can get a variance so this is we're ask for a variance doesn't i'm frankly disagree with that i don't see how they can establish that they had such causes will promote the efficiency of the service you don't think complying with merit systems principles against partisan hiring and the agency determined that he still would have been selected even without consideration of the spanish language requirement but then he would determine that his hiring was free of political bias well that was mostly because they hadn't retained and preserve their own records and they didn't even check for their normal record of who was the selecting official it was ms mcbride and ok just how should the basic question jews think failure to comply with the very memorandum is a sufficient basis  efficiency of the service i don't think it is in this case ok let no no i didn't ask you in this case is failure to comply with opium is very memorandum a sufficient ground to remove efficiency of the service i think that's problematic and i think hud's ok let's move on i disagree with you on that let's move on to me why isn't there substantial evidence to support the agency's decision that it failed to comply would you can't dispute and that it couldn't determine on the record that it was free a partisan bias why isn't based on all the testimony and all the evidence your record that is sufficient to support the ada is fine and i know you disagree with it but we're on  substantial evidence standard we're on substantial evidence when we're looking at a factual issue but before that comes the legal issue of whether or not the administrative judge used the correct legal standard and i contend that he did not because nowhere in the initial decision view trying the judge saying this removal promotes the efficiency of the service this is the ancient requirement the core of our social services them that once you're an employee you get to continue in employment page thirty six of hunt's brief in the footnote they recognise it as a difficult standard for them to meet in cases like this where you have someone saying that efficiency of the service is equivalent and confined to misconduct or arbitrator said that you know the misrepresentations on the application you know may make the application voidable but not an reviewable and the arbitrator determined that good performance after hire showed that removal was not going to promote the efficiency of the service and mitigated the termination to thirty days suspension over them agencies not arguing that it was under review of all d their arguing that ill year to comply with certain merit principle as espoused in the very memorandum is sufficient to remove the employing let's just i guess and you're going back to a legal question that i said i disagreed with you about said i mean you can keep arguing it but assume i disagree with that then where is the lack of substantial evidence that the agency did it couldn't rely on the failure to comply with very memorandum it seems to me that there is sufficient evidence here but i want you you mentioned some of that what you call improprieties in the  they shorten the time period right like which they admitted lee did it right where did you establish harmful air from that well up the denial of the thirty day is harmful st and foremost because my client lost sixteen days of pay and that's material that's collars and sense but more substantively he lost the opportunity to search around and find a lawyer who actually had experience in federal civil service matters you found some local lawyer who really had no familiarity in this area and it took a while before he came to our office and retained us to him the miss beebe appeal that really is material it really makes a difference to have time to prepare your case and that's part of why the thirty days is an important  you know from from hunts point of view there are obviously rushing to try to get him fired but how does that i mean what impact if we determine that the agency proposes removal for violation of the very memorandum that the agency established that it could not regular life the appointment as a pm required and that there is substantial evidence to support that how does the failure to obtain what you call qualified counsel impact that i do believe that there is inherent value in our i mean the agencies are allowed to shorten that time period anyway or they support the general rule and procedural rules are subject to harmful error and says there's precedent from this court on that you know there is but that's not what the text the statute says  about that and that the cause that the agency provided was it was in a legal appointment and therefore he had to be removed to promote the efficiency of the service to comply with merit systems well there is no statute that memorandum don't isn't there a statute requiring them to report on the instances to report to congress all that the instances of this are going there is that it ok the congress is concerned about this whole process or no doubt congress should be concerned but congress has not said that agencies cannot hire someone without o p m approval congress has not said that you have to notify o p m these are o p m policies issued you know incorporated through the  review our p m s determination it's undisputed that they didn't comply with the very memo yes but an impropriety in hiring doesn't change the fact that obligate became an employee and he was entitle to continue an employment except upon such with civil service protections while they are serving in a political appointment but once they become employed in the competitive service the time they served as a political appointee contributes to their continuous use a madrid service at that point there in title to m s p review and continuation of your employment except upon such causes will promote the efficiency of the service this is what it was shore ancient lloyd la follette standard that protects our federal civil suit ok let's let's hear from the other side someone because of the political status of the administration that appointed him previously constituted partisan political discrimination no your honor and that's because as we've explained in our brief this is a procedure that has been consistently applied and at least we have and by far back to the current administration that every former political appointee who wants to become a competitive service appointee has to go through this review process for investigates the appointment and there are options there is the possibility that they could if o p m finds issues with the appointment it could tell the agency to hear regularize the appointment which means w honor regularized the appointment means to make it legal they can either find another hiring authority for example if there's a way to appoint the person the individual nine competitively also there another avenue to make it legal there was the way they look to see if there was another appointing at the worry that this question is important to me for sure leisured but does it mean which one made that decision when opium went back to  heart and said we want to do regular basis disappointment and they said ok we are we've looked at everything a new and this point will is illegal design mean that that the illegality stretches back to the  the cart before the horse he wants us to look at the effect that that the denial of civil service protections had all on the decision and it seems to me that the st question is whether the higher was authorities that i've gone through about o p m has brought authority is that you know the very definition of an employee at five u s c two thousand one hundred and five as an individual when it's a civil service by an official acting in an official capacity in here and there is no authority to hire someone where they have not followed the procedures from o p m it is in fact correcting the illegal appointment and that the cases that are you arguing that he's not an employee under seventy five whatever yes your honor i mean there's some facial appeal to that but is that the problem is isn't that for cause by or decision mccormick very well setting aside that our st argument is that there's there's no employment status because there was no official individual in the competitive service and he was in the competitive service at the time he was surveyed it doesn't say that all of his service has to be in the competitive service does it and isn't their case all to the contrary and that we would submit your honor that they have that the  park you saw the mccormack case dealt with initial probationary period in the competitive service and that none of the cases that have been cited to well with a specific service which is a clear political appointee service which ha employee in the competitive service who served continuously for more than one year i'm paraphrasing that he falls within that definition and doesn't he need all three of these he was an d employee in the competitive service who had served continuously for more than a year coming into part service is there any case law or statute that says political service as a schedule whatever he does doesn't help and let me let me interject additional pressure on you to use the all he had served in the accepted service which is covered by i think supports the right and he served in there for over a year and then transferred to the competitive service would he qualify as an employee d under a service he served for over a year and they accepted service applied for and got a competitive service job and served d for less than a year commute humint of lee that served over a year wouldn't he be under our mccormick decision an employee in the competitive service with the current continuous service of or when the and is there anything that requires that you're you're saying that current continuous service language in all these parts intend that outcome there but it didn't play language approach it said look a use it or not and and so even if they haven't completed their probationary period at the agency if they paula filed under the nd part and continue service in their it you know i don't well can you just move on to the merits and not talk about this d jurisdiction anymore if you're running out of time your friend on the other side was argue a removal for violation of the very memorandum is not p m only has the authority has authority to promote promulgated procedures and to conduct investigations but this ensures that the at the symbols of the civil service rules are followed and the employees even have confidence in vetted therefore there was a qualified veteran that mr mean you did not follow the appropriate procedures to pass through to pass over a veteran finally mr abolitionists claimed that another issue that is has come up is the fact that is whether there were  to seek a variance just saying that well it's not required by law that you that you apply for the variance but also it's not required by law that you remove aba once he becomes an employee because of an agency error in the selection process does it have to be required by the removal justified is justified by the efficiency of the service well it doesn't need to meet that standard the administrative judge never addressed that standard that's my legal argument that the wrong legal standard was used below what standard service and whether or not continuing the service would have promoted the efficiency of the service in the undisputed evidence that he was a good performer perform very well pleased isn't this wasn't a performance for mobile and it wasn't a misconduct it was a removal based on the agency's failure to comply with merit system and when and i know you you want to argue that that's up permissible but i don't i'm not interested in hearing that i'm interested in hearing whether that decision this support well i mean we've got your argument that that's not a legally permissible basis for fish and it serves and you know we can go into detail about the keystone cops nature of how hard handled the opium review that they simply did not provide opium with the correct information that we discovered in the country i mean that's the a j shot it's our job on review to do it to know how look at the agencies evidence and the like it's whether there's substantial evidence supporting the agency's decision and also