you want so they would conclude it was involuntary in other words it was and in it that the discharge and then what would he what would his allegation be what is this allegation in this case well that the that the  have that expectation or the desire of wanted to go back to work where he didn't go back to work because it because the agency imposed the same physical agility test as being totally inappropriate and illegal as applied to him really in the first case my understanding was the contention in the first case was simply that it should have been given more time before he had to take the test that i didn't  would challenge the legality of the use of the test in another south well i thought i broke as i didn't throughout this and and and one of the issues was that he hadn't been given enough time to take it where the underlying issue is is that it was a but but but the issue is that he didn't i mean the issue they evolved into a violation of five c o four of i can never remember the number  army regulations he was required to be given another year that's that's correct that's correct and you but you know challenged that the the requirement that the test be give it to us i mean it eventually evolved into that because right in the time this was going on this very issue was being litigated in an arbitration in the in the companion agency in north carolina this entire thing took place in portugal in california or concord california and in it's  military ocean terminal and there's a companion terminal in north carolina and right at the time that this was happening that there was an arbitration going that arbitration decision came down i that it should not be applied to him let's what will the regulation states that a physical requirement must be waived if the agency has evidence that the employee can otherwise perform all the essential functions of the job so did he ask for a waiver no he did not ask for a waiver because of right like an applicable if  maybe or may not be that he has a decent unaligned credit question is whether it's true and i and i understand your argument that they applied the wrong standard which seems to me to have a good deal of merit but the problem is that he resigned from his job so it seems to me has no case unless he establishes a constructive discharge well even if he would have had a case if he hadn't chosen to resign and had move forward with his original appeal the the the the record is clear that he did not resign the record is clear that when he was first nominated work right on march fifteenth two thousand and  thirteen the day he was terminated the the director said to him if you don't retire then you're going to be removed if you don't retire by march eighteenth that the family holiday right and he's and he if he didn't wait around for two and a half months and then retire after they get it if that's the case why didn't they go back when he was reassured it because of the terms of the reinstatement letter the reinstatement letter told but the question is whether it's moot in other words does the reinstatement here all of the issues at that were that that he was fired for and they not only reimposed the physical agility trials which at that point he and unless you can win on the constructive removal issue it seems to me you you lose that it's moot as he chose not to go back to work right  he chose not to go back to work at the time but but but there's true reasons that he didn't go about one is because they simply reimpose the physical agility task number one which at that point there had been an arbitration decision from north carolina which said that the agency had to waive this if you could perform the essential duties of the position and this is really the core of the case and why it's a it's it's a big issue that goes beyond him because the army is using the physical agility test to you know to weed out older people t not sure i understand the question that this was what he wanted what is the stat what is the status with respect to the agency everybody's got a personnel file if he was just charged it whichever he was just charged i mean he never came back he was reinstated and he didn't come back and it wasn't something that happened after after he was reinstated so it really wasn't a constructive terminations in that point it was simply a terminations the retirement followed from his first time that he was removed so  reason that he gave for not going back to work so there's these two controversy use that were in that letter which perpetuated this issue that he was going to go back to work and simply be faced with another determination so it was not t e d accepted him from any further academy when the army took over this this installation in two thousand and nine and it's a clear document on the record yet they told him that going back it have to face these other t government comes in and says this case is moot it has to show that there's absolutely no possibility that would reoccur and if all we had here was a removal it seems to me that that standard would not be standard is not whether it would necessarily occur the standard is whether there are you have shown that subsequent offense make it absolutely clear that the original one who behavior could not reasonably be expected to recur you agreed that don't see that at the time of the removal us tamest but the same time he seems to have resigned and would have to establish a constructive removal in order alternatives he actually chose not to return to work and that's why he really cannot prove under the objective standard that he lacked and meaningful choice here and that's why he cannot prove that his retirement was involuntary likewise there was no wrongful act on the part of the essential functions of the job without harm to themselves or anybody else but it's logical first off that's a question of fact you must look specifically to the job requirements compare the job requirements the employees ability is there and it's logical that in the record just his own conclusory arguments at this point mr howard's past performance doesn't reflect on his present fitness to perform and that's the real issue here is the physical ability test is designed to ensure these police officers my final statement is as if this is about s and there's an involuntary retirement issue but an appeal is not moot unless it can be said with assurance that there was no reasonable expectation that the alleged violation now he's alleging this five c a far three three nine point two four and a host of other statutes and regulations in regard to this physical test that has to him it's an alleged violation of  of of the merit system standards that the alleged violation will recur and that the interim believe has completely and it regrettably eradicated the effects of the alleged violation of the alleged violation appears on the face of the rescission letter and it adds the fact that he has to go to this economy that he had already been accepted from so both of those are alleged violations of merit system standards otherwise the defendant is free to return it was always in the public interest in having the legality of the practice of subtle militates against this conclusion and i just read that from our brief which cites to suit two supreme court cases and