you will hear argument next to number two thousand and nine thirty one twenty seven jennings against the social security administration mr jack rose notified that he was being called to active duty i had to time he was administrative law judge at the atlanta office of the social security administration and he was one of the most productive judges in an office that was i believe they were held in the us late afternoon early evening or when he was on leave from social security when he was doing military work and he was on leave from the military when he was doing social security work and he  a great deal of lead time over twenty five year period i think the record makes it pretty clear in fact i think it's read that there were many many days during this three year period in which he was going from he was going to the base at early morning and driving back at about three thirty i think it was  the military judge judy's came back and was confronted with a statement that he had not kept the social security administration advised of his active military duty he may not be paid for performing his normal civilian duties since active military duty is incompatible with civilian service with the government that's the control of general ruling you me i have a habit of running dry your honor is that your side initial decision in this case by the n l r b judge me for some reason was appointed to hear this and f t v case there is nothing that judge kelly jennings has been charged with violating the only testimony was from an unqualified individual who testified as to some unnamed warm rule or regulation that was supposedly violated i'd like to turn the court's attention respect to the appendix yes later time but the so to make sure we know what we're dealing with here is that document one of the documents that woods was  after the hearing was this document in that group either of those two groups of documents and not otherwise in the record it was in the group that was sent after the hearing thinking it was also five help you with return you didn't come unless you were given consent well number one for the first three months he wasn't expected in the office because he was given a special assignment and the  i say that his chief judge spikey was well aware and so testified to the inspector general's office that he knew that judge jennings was on active military duty and furthermore judge clement to let me as somebody i don't go next day i do the same thing i give you plenty of notice i'm i'm home here's my telephone number i'm not come i'm able i have signed up and promised to show up at nine on monday tuesday wednesday and earthy right and so someone client was excused from the not call nine to five duty except you there are lots and lots of other times in this period when he was on active duty when he wasn't to my knowledge a fixed tour of duty from eight to four thirty and that seems to be its position right that was what the agent quit if that was so good would you expect that they would let three years go by take over a thousand cases decided by him was seven hundred seventy one earrings and then decided that he wasn't wearing was supposed to be that note number one is giving social security it medal for close supervision well that does not mean that i mean if the if the tellers at the bank are leaving money lying around that doesn't mean it isn't larceny or robbery if you walk in and take a stroll so i don't know that that helps you very much good to the core of that determine whether it's exclusion was appropriate but that doesn't make it part of the us record as such yet what do you make of being charged with not having kept the agency notified of their absence when the documents with the mandated  discovery the answer was given that wast when the documents show up three days before the hearing anonymously so jennings is meeting people that have them and they are be gentle with her to place more with the on the record before us he has a mid in the record that he worked at the military base during the day yes and then went to the i take it in a soft word from your reply that you have applied to the motion opposition that we're down to the transcripts of the settlement conferences the disputed materials and nothing else in the appendix that's in dispute is that correct that's correct as your honour's noted during mr jackson's argument the only context in which these so called anonymous was awfully holding two jobs because longstanding government policy is that active duty military duty is not compatible with the civilian job there are numerous comfortable controller general decisions that  it the statute said that the extra compensation that can be may not be on may only be for your present job that somehow there is because the statute doesn't preclude it you could hold two distinct jobs because if that is a military civilian court's predecessor in the pack decision that's forty one court of claims more fourteen in one thousand know six expressly recognize that this is the change to the statute was to remedy the problem that had resulted from sees timing recordkeeping procedures explicitly say if you aren't active leave active duty you must take military leave and you will be believed without pay and judge garman who was judge jennings second line supervisor testified that all  they can't hold another drop in for example if he had worked at the military six at night until midnight he would have been able to satisfy your time and she's time they have a mechanism in place their human resources person to use it or talk to people or counselors or any mechanism by which  it department justice we have to obtain approval for that i'm not sure what the s s a policy is but my understanding is they also have to obtain approval for that so for moonlight for all to yes yes and how do they know that i  employee discover that information and there was no no notice was required there was no notice required if you look at the brown being needy case a civilian working for the navy was removed because he had an adulterous affair with her marine's wife she said well i didn't know that was prohibited and the court found that lack of warning about consequences isn't necessary when you should know better judge jennings was an administrative law judge he was a professional he was hearing cases himself to say that he didn't know he was supposed to take leave without c sections five five three five five three six there are statutes that specifically allow a reservist to hold a civilian job when he's on reserve when he's serving as a reservist he's  active duty military is also allowed to take five days of terminally ill when he can spout from active duty there is no statute that says that an active duty military member of the military may also serve in his civilian job so compensation case it's a dual employment case first question is a factual one does the record reflect whether mr jennie's was being paid from both jobs yes the inspector general report that was assume record by the inspector general compensation case why isn't it a dual compensation case why wasn't it made to do a compensation case what is the problem with dual compensation if to my untutored i section fifty jobs five five three six says that no employee of the military or otherwise may be compensated in excess in excess of the statutory salary to which he's entitled for any service or duty that could be has been expanded and although it does it doesn't express really address active duty military who also hold a civilian job if you look at the totality of the statute itself it's it's crystal clear that reservists may ho council says that this court has held that the comptroller general opinions are not binding with reference i think he must be read referencing the butter b because he didn't cite the case but in limbo because that issue in the butter book in the bit about decision the court was looking at section six three two three which said that reservists are permitted to have fifteen days of military leave and longstanding come for all or general opinions had said that that included weekends and holidays but those opinions had not taken into account that the statute to change and in fact the way the government does things have changed now civilians don't normally work weekends and holidays so there but is does a decision of the comptroller general in the absence of any statutory clear statutory directive constitute does that put it this way does the comptroller general have the authority to make law for agencies with respect to personnel practices in a setting like this i would say that that is the law or one what would one simply say that's an interesting observation by  that this point they are undertaking a significant investigation at that point interest inspector general's investigation had already concluded and there was you know quite a bit of evidence quite a bit of that brains and serious  be adequate notes and in fact judge jennings testified that he didn't disagree with the characterization of his answers that judge hartmann presented at the hearing and there were some credibility term issues that involve their two judge that she was answering for judge jennings in some instances and the judge cates just didn't find that credible either and it was within the court that the judge's discretion to make those credibility to trial he can make credibility determination that he can come up with  periods he was not just jennings it appears to me but could this have gone on for three years without a yes as a either implicitly or explicitly allowing it to go on atlanta metropolitan area and remember these are administrative law judges they're entitle to a certain amount of decisional in pit independence they're not subject to performance evaluations are not subject to review they're expected to act especially and do what they're supposed to wasn't police disclose slee as it probably could have been but that doesn't fit what the history of judge found here was that judge jennings had concealed the fact that he was working these two jobs and bite keep these production up and i'm judged by the also decision to remove hours he was supposed to and he wasn't telling anybody that he had another job and that he was when that when he represented his working full time for the agency that he was actually working full time but he alleges full time to be in ca and also working and whether he goes with that to the government are those linked in any way seems to me to be a question it's potentially but because judge cates made it clear that he would not hear to leave without pay a claim i don't i  let me just ask one more question because i know there's going to be a dispute on this and i just want to make sure that i have more of you and that goes back to the time that attendance point your position is that there's this core period in which he's supposed to be here in the office or at least constructively in the office in the sense that he's over it hearing the case somewhere else and that what is the core period is like nine to three or something like that  take your word for it but in any of it doesn't really matter to my point my point is that i want to make sure that your position which was with the exception of the times when he was on military leave sick leave and you will leave and i guess he wasn't on leave without pay during during this period correct correct except for those times which totaled seven months every day that he worked both jobs which is again setting aside short periods don't amount to much every day that he would both jobs he was not only and he was not in the social security office for the required hours correct that's correct and and is there anything next question is there anything in the documents that were submitted after you jennings stated earlier when he had hearings and they had to happen between nine and three but for that hours that he was supposed to be that he usually spent at court the pearson he took leave from the military to do that's what we all took a ok but  the year called to duty with the military they couldn't possibly think that he didn't let them know that he was working two jobs when they assigned him by federal express bases to be decided from the very first he violated attendance by or on not every occasion but on numerous occasions being obliged to be in his social security job at a time in which he was everything in other words what you're saying is that there wasn't a single day in this three year period in which he was not on leave from either the social security administration or the military dual composition issue that you are free to or at least address my understanding is that the time in attendance is i just like to call of course attention to numerous things without a lot of meat but it's a lot a leap if you working two jobs typically people don't have a fifty percent lead in other words when when my overturned if he wasn't legally i decide that is not an issue they asked the court to look in the initial decision for any citations who any authority that shows what he did was wrong there is nothing in that i asked the court to consider the douglas fact as given that what judge jennings did was super as far as the agency was concerned and if as you