deputy district council in charge of contract claim and general litigation with the agency for the position was announced as deputy deputy district council in charge of contract claim litigation and this is at the record at a zero five one on the parties prior to the hearing stipulated to this and that set the record at a zero three one even if we agree large was not a preference eligible and that was part of his testimony before the the administrative judge and that was also part of the argument that i made as well that the selecting official didn't follow the procedures of determining who was a veterans of eligible veteran and in doing and not doing that he made the error of considering mr large veterans preference a little but mr large testimony was that he is not and he was then he was not but there would still have to be an opportunity for a comparison between your qualifications and mr largest coffee occasions even if we were to agree that that years were better than the of reactions to the record and rulings of the administrative judge that the records not developed enough to determine this too large but he did testify and i believe based on his testimony his testimony was that he was not as qualified well i i didn't have it and to the extent i believe that in his testimony indicates my qualifications and i believe that he also indicates that he was not a type three litigation attorney as the army corps of engineers indicates and perhaps that's what i'm referring to but again your honor i i they did not have that or they take into account i mean do you disagree that they take into account your status as a veteran i mean they say they're aware that you're a lieutenant colonel in the reserve and they say that they know you're a supervisory responsibilities as a as an l c so so there is evidence that they're taking you know actually and i did have the agency indicated that i was not entitled to veterans preference and the selecting  which i would also argue it goes to under patterson vs department of interior he wasn't not he was not following as far as the ministry of a feasible the requirements of the terminal who was veterans preference eligible it was also a violation of deal the fourteen forty two so that's one of the reasons why he made the mistake of believing mr large was veterans preference eligible he didn't know and nor did he take any time to do what the regulations require and determining so the answer to the court wasn't even eligible so i don't believe in real time during the review of these applications and and also i think you can see from my testimony i stated he was i was told by the selecting official in the selection process i another argument that i make and the board i believe this was an error they come up with this generally positive factor and then they allowed  papers but required that she hire the best qualified and it will end if all things being equal if it was a veteran's preference eligible what i believe it's us the yeah that's that's actually an important question because even if we again believe that he didn't properly weigh preference eligibility because he simply said well we know that he had it on his resume so that was generally positive if that's not enough what do we do about the fact that that the preferred background for this position included substantial knowledge of environmental law are for the position and also as i mentioned in the start i believe i got the four this was deputy and this was deputy district council in charge of claims and litigation which has no general civil and deciding whether the government has accurately reflected what it needs in the position i mean that would be a very strange thing for an appellate court to start getting into the business of doing the government decides what the qualifications are that it means for a person in a given position and they post those qualifications and in most what subsequent judicial forums can do is make certain that they follow different veterans preferences in doing it which may mean you might be right and the government might be wrong that if it's close and you're in second place and all things were equal you should have been the one to get the job not them and maybe there is some avenue for requiring judicial officials to review whether or not it was in fact a tie and you should have gotten the nod and look into the qualifications but i didn't understand your objections your request for discovery your objections and your appeal of those issues to the extent the way you were asking for was mis moriarty's job descriptions from her prior jobs and things like that i don't see what relevance that has to whether she is appropriate for the current position and your honor i guess first i believe it's appropriate questions of law i believe it's clear from my paper why i'm asking you to look at these facts to see the problem is these are we don't look at facts you know you are like questions of law and so what is the question of the law you may have some traction with me on your larger point which is that they should have reviewed the individual qualifications and that maybe the board below was incorrect to the extent that it repeatedly said we don't review the qualifications and assess whether two candidates are equally entitled or qualified for the job i mean that's a legal point it seems to me because it's interpret ing the d o d directive that says when there are two people equally qualified you've got to give the job to evacuate and so that's a legal point but the question about the nature of what she did in her prior work or what her prior job descriptions were and those are the things about which are asking for discovery i don't see how those relate to the legal question y the question i have for you is one of the other things you saw in discovery was you actually wanted mr moriarty's performance evaluations and so what i'm trying to wrap my head around is if you are right on the legal point that you had a right to have a judicial body or a m s p board review your qualifications suppose you are second place so we take out mr burke entirely so there's no question suppose you were the second place candidate and the m s p should have looked at mrs mor qualifications and your qualifications and decided whether or not you were equally qualified in which case you should have got the position over her if that's a legal standard that we were to endorse i'm a little nervous about how far that opens the door discovery because you know you understand you're very well qualified and well spoken and all of that but a lot of times we get these appeals from many many different people i don't think that we should open up the doors of discovery and let them see all of their is job performance performance reviews i mean you know the confidentiality has to be really important in those scenarios it would it would be a strange door to open to give you access to all of moriarty's personal employment reviews and all of the job she's had so what can you can you help me in any way feel better about it since that's which one of the things you asked for in discovery is you wanted access to her job performance reviews do you see the problem the problem isn't giving you hers the problem is if i say yes you're entitled to those and i saying every single employee who didn't get a job he thought he was entitled to is now entitled to see the personal confidential employment records his competitors that's the problem i'm having perhaps the performance records was a bit of an overreach only part of what i really wanted was the job descriptions and i wasn't looking for any personal  understood what it meant to have trans preference rights and to follow those procedures verses what it simply means to serve in a military capacity because i think you probably understand well that those are two very different things not every person who has pas military service is entitle to veterans preferences correct yes your honor that and i think this selecting official understood that i do believe so and i also believe that the lack of it is testimony on page one sixty four grab your append no and here's what he said as i think one sixty four in the middle of the page and what is it that indicates whether somebody is preference eligible this is the question put to the selecting official i can't say exactly what you mean by that but obviously it's service in the united states armed forces honorable discharge and would that explain why maybe he thought mr burke was also a veteran someone entitle to veterans preferences because he viewed veterans preference of being in entitlement to any person who is part military service as opposed to understanding the proper employment procedure set out by the u s government for assessing veterans preferences and giving those people the appropriate entitlement later on in the page mr mention also discusses that the point system as explained on page eleven of the instruction and discusses if the veterans employment opportunity act were applicable a disabled veteran would get temp reference points purple heart recipient to get ten preference points and other veterans would qualify for  clearly understands where in the regulations wait wait let's read the next paragraph on the very next page he said he's actually not that familiar with the rules and that he only thought that those preference points were given if you were choosing between two veterans not if you were choosing between a veteran and some other candidate i think there's there's really two issues here your honor the first as is mr mention as articulation of the difference between the different veterans preference and whether someone entitled to a points preference or whether someone has ever served in the military but is not entitled to a points preference mr mentions point as later on page one sixty five he states that we didn't get to the point of choosing between not each individual had a point preference had the army determined that mr burke or i'm sorry mr large and mr vaz and were equally well qualified then it would have had to establish  terms of in terms of whether or not the army would have to choose between two veterans when one is preference eligible and one is not should mr large or mr design been considered equally well qualified then as per the regulations and as an instrument design would have had to be chosen but then at the bottom of page one sixty six he goes on to say that but none of that applies in this case because this is accepted service except as a service for d o d s that civilian attorney positions which are wholly exempt from their point re pursued years in part three or two of title five and and so he says that that means he doesn't have to worry about the veterans preference rules he goes on to express president was entitled to have his veteran's preference considered as a positive factor and making it all that's not all in this case right d o d went further and in the case as applied to mr resign it didn't just say he's entitled to have it as a positive factor it went further an well qualified tiger goes to the veteran every time and so this isn't just a matter of saying it's a positive factor this us two there is a very precise and clear d o d rule that is what i just articulated correct and that is correct your individuals are equally well qualified the preference eligible veteran must be given the position is not what happened here mr herzog was ranked third out of the three finalists interviewed for the position suppose he had been ranked second how would this change irrelevant to him what mr moriarty's qualifications are because the board expressly said it did not have jurisdiction to and nor would it look at the qualifications of the two agencies and review whether they were equally has a rule that says if two people are equally qualified the tie goes to the veteran how can the m s p be say we were fused to determine whether the two people were equally qualified that doesn't make sense to me the cases in which we've held there's no jurisdiction the cases in which the m s p has held there's no jurisdiction all go to cases where this particular directive doesn't exist it just says positive factor and so they check the box that says positive factor and that ends the entire inquiry and that's those are the only cases in which there's been a conclusion that there's no jurisdiction of the board to review the qualifications but here this is agency chose for better or worse to enact a very specific qualification based directive with regard to veterans why doesn't that imbue the m s p p with the jurisdiction to actually review the qualifications to ensure that directive has been followed well as as i said it was a very long question and if you want me to clarify any of it i can if you could  tied veterans have to be chosen so why doesn't the m s p have jurisdiction to decide whether all things were in fact tied or not as this court was cast and show and argue versus department of just b does factor section but that was a case in which there wasn't a directive like this one that's what i'm trying to suggest to you is every single case before this involved a different agency that just said its you consider veterans preference to be a positive factor and they say nothing else they have no specific mandate like this agency does so why doesn't the directed at issue in this case imbue the board with jurisdiction to assess whether that looking at the qualifications of the two candidates to ensure that this directive was followed what in the statute prevents the m s p what statutory changes are you telling me would be required as as relates to th something in the record that indicated it was a tie then i'd say under under the rule in d c to have him discovery no your honor but that is not because as you pointed out before some of what instruments i was looking for was for instance moriarty performance evaluation what he was trying to prove was that the position description was manipulated to give her a better chance of receiving the position than that is a prohibited personal practice but even if we even if we can for that i mean you know having presided over a lot of personal cases over the years  when for instance someone says that they were denied a promotion because of their age then it is the only way to make that determination is to look at the respective qualifications of the of the persons to see if but for the age this person would have likely gotten the position how can you make that determination that but for not giving him his veterans preference he chosen for the position so there is evidence in the records that he was never considered as well qualified and in addition as as you pointed out for a while he was number three number two mr large who testified on behalf as moriarty had only seven years of experience at the time she was hired walking out of her nineteen for going on years of service or to speak mr large had twenty five years mr large was was not eligible for a veterans preference is not right  the fact that that the deciding official thought he was he just he happened to open a veteran he was about her and because of the redactions and it was never discussed by the administrative judge whether or not he was entitled to veterans preference again it didn't no emphasis in the outgoing deputy of any kind with regards to civil works isn't that a prohibited personnel practice i mean even if we had our guts think that this was manipulated to give it to from someone violating their duties under the p p p and i think that the board has as an evidentiary matter can look at violations of the p p p to determine if there is a positive factor i don't believe that you can have a