you have three minutes for  doesn't that impact your to be found unsuitable for employment in the agency and that pre employment would interfere with the ability of the agency to effectively carry out its law enforcement mission but doesn't that letter support the conclusion that it was just that particular position that she was being found on suitable for the letter does include the language of this position however that language is not determinative as our position that they do as you may not limit jurisdiction of this court to review its at appealable actions by throwing in language this position or not including the board what makes you think they're trying to limit the jurisdiction of the court what they're saying is this position as you know your honor an agency may reject an applicant in one of two ways st the agency may reject the apple can't by finding that she is simply not the right person for the position isn't an appealable non selection nd the agency may find the applicant unsuitable for line your honor and appointment to all positions with th us for a period of not more than three years they point to the position she applied for but they she would also be found unsuitable for opposition within the agency and neither the letter are an agency it engages in a row making when it creates a rule that it creates substantive obligations compliance obligations for a broad class of people under by my taluk and disabled american veterans suitability determinations i mean you know maybe you think oh p m s regulation is wrong or it's regular authority regulatory authority was ignored by what you say was a de facto construct of suitability to termination but doesn't that pose a problem for you that there is a regulation on the books in reading the two thousand and eight regulations from o p m we see that does not mention the fact or constructed department but we don't interpret the failure to mention it as a pro prohibition of the existence of de facto or constructive department in fact a commenter before the revision suggested that the o p m require agencies to to that talked about the three year unsuitability didn't say that that her conduct could be grounds for a department proceeding not that not that she was actually being nor that she would be chosen for that job so here's your suppliers as i understand you're saying your position is that it is the triggering event of the notice a proposed action that you say makes this different and somehow  from the o p m regulations the no superpose action and the letters after follow the o p m regulations the opium regulations explicitly say that agencies when they wish to engage in  reading the letter that communication from v h s with the regulations shows us that ms ritchie was divided whether the agency wants to call it a department or not ok but she never got any formal notice that she was just far  argue as a student and i give you credit you don't seem very nervous and you're very articulate but one of the most important things is following the rules of the court and knowing the rules of the court and there just seemed to be a lot of rules that were the court would have been as nice to let you enter a late notice may please the court and i do want to thank the government for not objecting to the student argument and even there any delay in it because i think it's valuable yes ok and that's a very succinct but descriptive phrase of the interaction between opium regulations and it's people who review because there's no statutory right to challenge suitability determination and so in two thousand and eight o p m made clear that they believed it was people was acting outside of the strictures of its rules and rewrote the rules and one of the things it did was it reasons yeah but here's the problem is that the regulation does tell you how to do it if you want to do a department or a suitability determination one of which is the notice of proposed actions and then a finding that the proposed action the person unsuitable i mean would that normally have occurred if the only determination was you're not being hired for this job it does seem like they went through the formalities even if they have some language that that seems to say well you know there's still another piece of formality left but why go through all those formalities if you're just rejecting them for a particular job i agree they went through this suitability process they could have closed the department they they they gave the correct notice that was required in the regulations so they could have implemented a department they chose not to and that was within their discretion to choose stranger question but one thing that must happen is if they are if they're selected from the certificate they're being considered from a certificate and this investigation begins there must be under the opium regulations  that doesn't normally happen in an employment hiring context right i think you're right and so why did they do it here if they weren't going for a department would it indicates to me that they were considering the barman as a as a possible outcome because if they if they were considering the barman and they had not given her the notice of proposed action it would have been procedurally defective so by going through the process they left open the possibility that she could be  bar in the end after receiving her responses to the notice they chose not to do so well that seems a just a little bit odd to me because the letter that actually went out said this would be a basis for debarment how much farther do they have to go when nobody who's it going to look at it for the next hiring is is going to say oh yeah we're going to hire this person right well that i think the notice should have put her on notice that this is something we're considering environment so i think that was actually correct side art but the letter at the end of the day did reach a conclusion that this would be a basis for department it did it well  she wants to apply for are you aware of anybody else has ever gone through a process like this and then later applied to ice and was able to to get a position i'm not personally aware  petitioners correct that these investigations can go to the privacy act protected but they can be considered in the future for positions that are the same risk  level unless it's a high risk level position that could be used this investigation so you agree with your friend on the other side or says that these things are kept on record for three to five years so that that while there physicians correct that those that they don't have to start a new investigation every time there's an application from someone they can go back and look at the old investigation however each time the african has to fill out new forms a new s if eighty six if anything's changed she can indicate that and in this case petitioner in the case that she has multiple lawsuits pending against her former employer so litigation can change things and to the extent that she prevails in one of those lawsuits that be something worth noting if she replied so in that respect you know maybe that might might even be part of the agency's thinking on not divorcing  is that things can change and there are these pending lawsuits out there do you agree with me that the m s p is not an agency for purposes they have to get that's correct with just for clarity there's an exception when it comes to administrative law judges when they're reviewed that's an a p a process right rather than that it is p b s not an e p a agency so i must be hearings are not a p a hearings ok want to move back to the discussion of constructive department as you mentioned and talking with my colleague on the other side where matters is that is whether or not they should beca apple employee was terminated during his probationary period when he appealed to determination the court found that he had not raised a constructive department argument sufficiently but had he raised it it could have been available to him the court had a choice in th of completely negating the existence of constructive suitability as the agency would have us do today but instead it just found that mr so he said that raised it sufficiently the real question here is whether or not an