his international transfer the government was responsible for collecting from him if he chose to participate in the first basic annuity and also in group health insurance had a chosen night in group life insurance all these programs administered by the office of personnel management this is set by statute very clearly laid out in o p m regulation it was documented in an agreement between labor and mr messenger in two thousand when he took on the transfer to other employees involved in this and they eventually located a second thing that occurred is that their accounting systems apparently changed and mr messenger had been paying into the o l checks for the group life insurance and the first basic annuity on the theory and in fact in the practice for a while waste that labor would deposit the checks take the proceeds of those checks along with its own contributions send them over to the office personnel management the custody of these  various benefit accounts for life insurance and for the first basic annuity mr bradley we are familiar with the facts you're arguing that the department of labor acted in bad faith yes and that's a basis for had been requesting prior to the onset of litigation in two thousand and five and two thousand and six through two thousand and seven or so which was an accounting for these benefits the way department simply would not provide by a deal well to the office of personnel management and wanted to been paid there was supposed to have been an audit and this is shown in the materials in the brief appendix that this had nothing to do with whether or not  laborate bar was supposed to continue to benefit contributions that arose during the course of the m s p v litigation bureau and during the course of the m s b if you would a geisha in first what occurred here was that the labor department retroactively terminated messenger's re  there was nothing that precluded as a matter of walk this particular point from being extended from two thousand and five two thousand and eight there's actually a provision that allows an agency to go to the department state to get an extension of one of these international  necessary to our national security that would be a determination for the department of state not me i can't say that that was the issue in that case the question was not whether this was not a case against state park they have a whole separate little tiny division some place on c street where they make these determinations and whatever the criteria they use they use but this was not a question the feel they could have done it they could have been requested to do so by departmental ever that did not occur so we never got to that question which is what about the benefits anyway and we went through months and months and months of litigation of this i wrote to opposing counsel my colleague and asked him twice to give us an accounting for these benefits twice we got nothing i the necessary accounting information no no your honor they don't what they are is a wage distribution table it's the end of the government's appendix it shows theoretically what should have been receiving what you've been paid it doesn't show what was received and what was paid doesn't show what was transmitted to the office personnel management doesn't show what was received for mr messenger or there's a wage table it may be perfectly accurate but it doesn't show what was received message or needed to know whether its accounts were being car when we could not get that information informally through e mail correspondence during the course that we geisha in from the park labor council i filed a motion with the board requesting an accounting of that new judge on the case judge bogle declined to order that in order to try to get the i mean there we are i i took some further procedural steps to try to accomplish the result that this regulation contemplates this regulation that i cited is for the purpose of protecting the rights of the employees funds that's what the regulation says it's a fight to sherry obligation it's not the messenger it's to protect these employees on international transfers that's what the regulations all events it's very specific i thought it was pretty specific in my motion papers the judge of the board did not agree so what the judge did was to set a hearing date nobody wanted a hearing on this the judge said go figure it out in discovery so my colleague at the department of labor now the board's decision not only by the administrative judge judge obus but also by the full board went off on a tangent they didn't address my arguments under alan vs postal service but they did say well the labor party had some concerns as to whether they should be making retirement contributions at all even though they've been doing it for years even though the agreement required even though the regulation was specific concerns and they may have had some concerns and what were those concerns legitimate no your honor they were not i disagree  three zero nine subsection a this is open arms regulation they administer the retirement system an employer who is transferred to an international organization with the consent of the employing agency isn't title to retain is intitled to retain coverage for retirement and group life insurance purposes if he so chooses and that how could be any plainer so when you ask why do they have a legitimate concern my answer is no but if they had one they certainly never pressed it point in order order from the board they never got they're concerned about the time involved with it was two years whether it was five years whether it's more than five years and initially that was sorted out by judge cook's order once judge cook said five years we went to the benefits phase that was the end of that now they may have had a concern that was resolved by the board and that was sketchbooks were five years or so then we said ok five years where is the accounting no accounting requested by email nothing requested by motion judge denied request clear regulations very clear intentional failure to perform if i do share a duty that's a fighter shiri duty to an account to a person for whom you're holding funds whether you're a bank but you're morgan stanley or they are my friends at the department of labor and then they alan case goes on to talk about the ability to determine bad faith by conduct in the litigation itself which are necessarily prolongs the litigation we went through six months of litigation with ordered as a matter of law and was arbitrary with respect to its determination on face we asked them to reverse the board's decision remand the case to the board so that the actual amount of the fees can be sorted out if there is a challenge and that you retain jurisdiction so we can submit please the court i want to start just psychs are finding the timeline a little bit mr broida indicated that the department of labor did not make a determination as to when the department of labor realized in late two thousand and six that there were these checks that they had forwarded on that were not actually cashed and deposited properly  and at that point they started looking into what was going on there was this issue with transferring from directly dealing with o p m to going through the the national finance center and then in the process of looking through what was going on that's when they realized yes your honor it is set up by the government but there's nothing to indicate that the department of labor acted so egregiously that the board or abused its discretion by not characterize it as an impropriety and i would not characterize it as impropriety there was confusion with the transfer over to the national finance center as a sort of a thoroughfare for abuse these checks rather than directly forwarding them to o p m and o p m the one that actually deposits them with the police they were sent by the government from one place to another and that's roughly and you don't think that's properly characterized as improper i  the agency is also responsible for collecting accounting for and depositing the respective funds or retirement as an accounting for in a sentence seems to imply that comes right after the word collecting yes accounting a talks both about an audit and an accounting and in terms of some sort of formal audit mr part of her record there's been no formal audit but that's that's not what the statute were there rather the regulation demand there th was in two thousand and eight in october of two thousand and eight the agency said we have documents about everything's been deposited pick carries through the end of two thousand and four we've determined that your employment rights in writing and is it a detailed accounting as the regulation requires an accounting that says ok we received four hundred dollars on march twenty ninth received six hundred dollars on march twenty eighth i don't think that he's arguing the formal audit in irish terms needs to be done but i would think this would be good enough did you provide something along those lines not in october two thousand and eight but it was provided during the m s p proceedings there was a spreadsheet with each check and what month those checks apply to and then pop their actual physical photocopies of each check received forwarded on to o p m with handwritten notes on this is when we received it this is when it was forwarded those were provided in the m s p proceeding but the settlement let alone understand why for the settlement agree that he would be able to participate in these benefits beyond a five year period no your honor the settlement  chicken of of any anyone at the agency initially to stop sending checks so there were no checks that would have carried him all the way through the august thirty first two thousand and five in any  case he had never sent those there there was nothing for agency to have deposited that would have gotten them through august thirty first two thousand and five the second problem which was referenced a little their terms there's a statute that says that these are the first and second accounts should not be paid into if the employee has started paying into a pension at the international math in our had been paying into the ilo question on until november of two thousand and eight when they had with me i get the impression if you hadn't had a changeover in your counting system you probably would have let him just keep doing this forever your honor i  do not know what what would happen there the this program of labor employees going over to international organizations although it is a statutory it's very rarely use turn piece of permissive the the standard itself is is subjective and this court has recognized that the work it's great discretion in determining attorney fees and this court awards great deference to that agency i don't believe so you're on the the standard does not necessarily require intentional  your your litany of excuses well yes it's a statute but it's little known and very few labor department people do this and so we just didn't know how to do it and we have a change over to our accounting systems and i mean it it's all what i ha thought i can see how it would happen but at the same time you know what happened to the detriment of mr messenger and he had to bring a lawsuit and we kept asking for an accounting and that part should have been relatively easy except the checks were sent to the wrong place and it's always difficult to track them down and figure out how much and when and so finally you did get something which maybe adequately qualifies an accounting but only after he had to file a litigation and go really pretty far in dealing with a geisha before you provided it why that up through from from september first two thousand through april two thousand and five the agency complied with it all of its duties when exactly was the accounting given the spreadsheet and the reconsider with the court your honor clearly erroneous or is not the standard first of all it would be arbitrary and capricious or lack of substantial evidence just to clarify when figure out the difference can clearly erroneous  agency complied with all of the subrogation between two thousand and one and two thousand and six but it didn't provide mr messenger with anything in the nature of an accounting until two thousand and ten year i would not characterize it as anything in the nature of accounting the agency did provide mr messinger with its calculations it did not give all the underlying data about you know all these checks photocopies until that question of what the correct action amounts were what properly is the accounting for payments required to be made as the regulations state someone have to determine what is required what payments are required to be made and the agency there were there were issues that the m s c had not had determined there are legitimate questions about once there was a discovery about the department of necessitate a decision that the m s g be abused its discretion that attorney's fees were not warranted in the interest of justice and i think my time has run out so we respectfully request that army just as articulate the reason to write about it i have never not watched heard a question of whether or not the labor department was obliged to receive from messenger his election life insurance contributions and send them over to the  first time i'm hearing it today and under the statute decided by good friends of the justice department and the labor department it doesn't say anything about a disqualification from participation in first basic participating in other organizations the international labor organization snooty program there may be an issue as to service credit that has nothing to do with contributions to service credit relates to the office of personnel management that it provided the spreadsheet and the government provides the spreadsheet at the end of it respect to receipts of checks and what was paid over to the last person or magic governed did not include it in their unexcited not including mine given the questions that you've asked probably should've been there but as the timing of this which was your question your honor in counsel it became clear if we really needed this audit or accounting call it what you will now counsel for the government says that they supplied this new information new information  board's judges should be hearing where we were in discovery now i don't recall whether the government supplied that material when they finally issued their response the deal are in response to my request for production of doctor intent requirement under the heading of bad faith they slice and dice the interest of justice standard to include gross procedural error people who are substantially innocent where agency positions are clear weight unwarranted