thirtieth twenty sixteen if you look at the written instructions that was given to the employee he was told if he wanted nor reply that he should do so by requesting one in writing in a letter address that all communications have to be written and you can either buy a written reply or you can request an oral reply so that's the way it normally works like that but what your honor it's been my experience that federal employees frequently make a written response and given or replied to charges against them and i believe the third extension requests that was given to the employee said that he had a right to respond or early or are i can tell you that saying officials that work for a department of homeland security specially legacy immigration offices supervisor or a thousand people they don't take phone calls from employees they don't take phone calls from employees  that the employee should have called in advance to request nor would fly in my experience even if he had called he would have told that someone would have gotten back to him well no one suggested it called the most i'm missing something ahead all correspondence full of law and requests to apply early should be invested in writing to the los angeles field office so did he submit a request to the los angeles field office requests that would allow them to have no necessarily a cross of partly of them respectfully disagree your honor in my reading of the written instructions are given to the employee that all he had to do is request and or required by the deadline now that he actually had to have on completed by the deadline and if you look at the massive case that was cited in the brief i've read it's similar and the board in that case ruled that as long as the employer requested an old fly by the deadline the government was up the kid to provide him with one before they issued a written decision on the case i'd also like to point out that the government has argued that the employee is given plenty of time however frequently happens and stops the cases the employee initially designated the union as his representative and then he with what later went out and hired a private attorney is representative and the agency fused to attorney and then there were three and so i think the agency is at least partially responsible for the delays in this case and again that mirrors the massey case where there was a union and it's very handily the case where the employee and the government was not communicating with the employees tourney and that was partially responsible for the place i'd also like to point out and my reading of the alford case the employee could have merely mailed a written response requesting or reply by the deadline of june thirtieth that might not have been received her several days afterwards in this case he fax the letter to the agency and they'd made it that they received it by right in my experience the government has all kinds of built in advantage when they discipline a federal employee they freely charges they decide what the discipline is going to be going to straight judges are told they have to show deference to deciding officials decision unless it's and it's an important check and balance that should not be overlooked and should be honored if one is requested i also believe that a support policy to give an employee an oral reply because  to preserve the right of a federal employee to receiving your reply if you request one and also i believe if you read the case precedence that all the employee has to do to trigger that right is to request one by the deadline which is what  was done in this case the massey case does say that if the government is going to change the deadline in which there were fines to be conceded that needs to be explicitly spelled out in previous written instructions which i would argue was not done in this case the letter is ambiguous and it says he has to request by the deadline also i don't believe the government should be rewarded for their bad behavior by refusing to communicate with the employees tourney for two or three weeks and  has a right to an oral reply i don't think your reply corresponds with the we're hearing i think hearing suggest a face to face meeting or some type of testimony or statement and with respect to no light comes he's entitled to a written reply but if he hadn't complied with the time that you would be here saying two processes by right i don't believe the agency in this case would have given him an oral reply even if he had facts that letter in a day or two earlier and i would argue that the act of faxing the letter in by the deadline triggered and research is right to give the order reply and that he did meet the written requirements instructions seventy five thirteen b lays out all the steps that the agency must follow before moving an employee and subsection b to it says that the employee's in time to a reasonable time not less than seven days to respond it doesn't s department of homeland security what i can tell you is what's in the record and what i can tell you is what the arbitrator found on the basis of the record there are correspondence that set out the deadlines there's the notice of proposed removal which says you have ten days from receipt to get your written response on with the agency and ten days to request a scheduling or reply extensions were given after they were busted by the agency and each of the subsequent correspondence both the requests and the response is gran extensions are always couched in terms of the deadline to respond or the deadline to reply the arbitrator looked at the course of dealings between the parties read the correspondence heard testimony from the decision maker and made a finding that the deadline on june thirtieth was a firm deadline to reply and not to schedule an oral reply that finding is supported by substantial evidence doesn't the second happened a notice to him isn't it a little confusing all written correspondence including and written yes there is certainly a distinction between the request to give an old reply and the giving of the or reply but the language that your honor is looking at is essentially foreign language that appears in every single correspondence from the agency to the employee and that just employee to send any written correspondence of any kind to the deciding fishel at a particular address the arbitrator looked at that language and correctly concluded that it did not extend the deadline of the firm deadline to get a reply to include a request to schedule at the end of the day what the court has to determine is whether mr goes in had a meaningful opportunity to respond and what the supreme court said in a louder mel is that a meaningful opportunity to respond is and will be to appeal to the discretion of the decision maker to give his side of the story and to provide the reasons why he should not be fired mr because you had all of those and more he was given more time than was otherwise afforded by the statute to give a response he was afforded multiple deadlines he submitted a written response by the deadline in which he went through charge each charge specification in detail and gave the reasons why the comparables were not comparable and why he should not be fired the fact that he did not convince th deciding official not to fire him does not mean he was not due process i would also emphasize that the court held in darnell very clearly that the opportunity to respond is not a guarantee that the employee must be able to present his story prior to his remov then dates are offered and there's a mutual back and forth in which she usually days elected or applies are rarely given within the original response period they're frequently schedule after the response period has expired but that's the way i've seen it homeland security don't change anything that would be correct your honor i've handled cases for department homeland security department of treasury department of your force foreign defense procedures are similar across the board that i've encountered in our replies usually requested in writing by the deadline and then dates are offered unscheduled at a future date that's mutually convenient for both sides i also would disagree with the government's position that mr polk knows he and the employee was given a meaningful opportunity to respond he was not given his or apply during the hearing that citing official testify that even if you had given an order reply it wouldn't have changed your mind which to me is it's a dangerous thing to say because she had no idea what would have been said and she has no idea how she would have reacted to it and that he's a dangerous position to take to a fundamental due process requirement