necessarily hold up to be an absolute proposition you don't have any problems with the rule across the board and that is to say that any application in a case that's correct as stated the satisfied they then petition to the end as people believe in many cases however the employee and agency are able to resolve the issue pending the notice prior to a formal disposition by the agency they resolve it in some other sometimes employees do this with the assistance of counsel and sometimes they do it simply on their own negotiating with the agency in this case that's exactly what happened here the agency never issued a formal finding on the proposed notice to remove mr pollock from the service because in this p b this is not necessarily relevant it's just my own background information and that is that we are what in the settlement agreement in the background of this is there is a third of an agreement we want to enforce it because it would have allowed her to take this through early retirement there is no literal language that says ms have to retire on a retirement removal the reason for that is because the o p m regulations that dictate whether or not you can have that kind of retirement require that the employee resign her position in the face of the notice to remove her and so on this course of fact question actually but when the lawyer for us and i were negotiating that position in the settlement agreement he drafted the proposed agreement and i we had a debate and discussion as to whether or not the language in paragraph d should be resignation or retirement there was a specific negotiation over that right because of the opium regulations if ms politics been removed she would not have been eligible for the type of retirement that we were trying to accomplish through the settlement agreement because the regulations require right now under designed so you put the word resignation is that the provision that if in fact you had your way up your druthers i guess and this kid went to the m s p for enforcement what what in the agreement would they be enforcing to get her her early retirement paragraph  that she would be eligible for the benefits do commensurate with her status under the civil service retirement system which graham and interpretation of what commensurate with her status correct and that's right and i  had to go she added with the other lawyers saying precisely we did not want to have this problem i did not want it to be unclear he not being human resources lawyer consulted with us he i d s human resources department and the answer came back no it has to say resignation otherwise our human resources department cannot process it in the way that we're trying to process it so that o p m will honor the intention of our green and that is why we had the back and forth that's why you notice in paragraph the resignation is in quotes  so the whole issue in this case was that in light of the proposed removal miss paula from the service for misconduct she was not eligible for the type of retirement that we were trying to effect for  because of the relative strength of the arguments that i had to defend against a notice the agency was very agreeable to permitting her to resign in lieu of being removed because she was very close to her retirement separation date that should be eligible for retirement they agreed and we had a specific discussion about this these facts are reflected in my brief the agency's lawyer consulted with his human resources person to find out could we do it in that fashion the answer came back yes but this what the language in the agreement has to say so because of that that's why the language is reflected the way it is the difficulty afterward when we attempted to force an agreement when they reneged upon it what happened was u id declined to process the retirement as as a resignation date so that she would be eligible for the type of retirement that we were going for and therefore wouldn't process the information that not something that the board can do you make in your brief in the in the conclusion be brief an alternative suggestion that she should be deemed to have been voluntarily have been in voluntarily terminate the consequences of succeeding on that would be i take it that not to enforce the agreement but rather to put her back in the position that there's are pending right now that was not remedy a remedy that was ever requested as far as i can see in her appeal notice or in any point along the line is that the remedy that you now think is appropriate given her appeal and the procedures in this case up to now i think that's the only remedy that i could get remedy and say but i think in terms of whether or not we would be able to then renegotiate an adequate resolution with agencies i don't know then on the approach they would then say what is pending if we were to go back to that point what is tending is my responses are noticeable to remove her and we would then be waiting to see what the independent agency decision maker what his decision would be on that note and she the way i understood that bright question which i think with a little broader not whether they want to get at this juncture but whether you ask for it at an earlier juncture and their per person urge or set the proper predicate for your just coming your conclusion and saying alternatively give me this so what we are is that that you think in the record that you have preserved the ability to ask for that type of remedy or that type of analysis and remedy i think if the settlement agreement were not enforceable and the agency is left with a pending notice to remove or that is not acted upon it says it's settlement is broken then it's broken as to both parties and the agency has been in the position of not having ever issued any final notice because effectively the settlement agreement constitutes their final decision on the pending notice to remove but that sort of puts a cart before the horse that's an assumption that the settlement agreement has been breached with can only be a determination made by some tribunals that would be in a position to hear that and right now the problem is that this particular tribunals said they are not in a position to hear that you do say i don't know if you were the counsel at that time but you do say in the appeal papers i think it's on page twenty seven of the penned except the bottom paragraphs that you do make direct reference to the involuntary in this of the resignation and you do say appeals are improper removal and that certainly suggests that alternative remedy but what i discovered and give me pause about that was that in the response to the notice to show cause of the order to cause there's no reference to the issue of improper removal or involuntary miss as i carse i could tell and likewise in the petition for review so it looked to me as if that alternative remedy had fallen out of the case if i would have to go back and actually look more closely my papers it was not our intention to we that request it was our intention to preserve all of the or we need to sleep on feel to them and people would but even in the appeal notice where you did make a reference to the involuntary noose you did limit the request for relief to enforcement of the settlement agreement so that would not that being as i understand it not a form of relief you'd be entitled upon a finding of involuntary ms i just i wonder where you find the involuntary into spitting into this case at this juncture i mean you know obviously if it had never been raised before you couldn't come here and say oh by the way i'd like another remedy if you're if you're the richardson rule is broader than you are getting that it should be read as being then does the voluntariness aspect of your argument go away i would say that in a sense is well i guess i'm not understanding your question it wasn't a very very let me try to give richardson doesn't apply right well that's ok i mean what i'm trying to see is there there's a theory that you could advance i suppose and say richardson or not right in this case they had the intention of tricking me into into resigning because they tried to cook up this settlement agreement they promised me in effect that i get retirement benefits knowing all along that i want to get together and so that as an alternative remedy i want that relief from the from the board of putting putting me back in my predicated right i and so i don't see that my request for relief from the wherefore clause of my response to the show cause order cut off in any way the arguments that i had previously that i had previously that i had made in her original piece hearing for example to make a determination as to whether or not there was fraud or misrepresentation why should that good why i think that implicit in a statement by her i mean that whole we don't you understood her allegation everyone understood mrs pollock was represented by counsel and any type of influence that needed to be drawn from the settlement agreement should have been put in the settlement agreement itself for  opposing counsel the the statement on page twenty seven and twenty seven of the of the appendix which is a at the very end of her supplement to her appeal in which reference is made to the voluntary this issue and that claim of involuntary resignation is made when your i'm sorry a matter of timing because the administration judge says in footnote three right at the end of his opinion that if she wants to make the in voluntariness argument she can file some questions we thank you very much polly had consented to that and at the end of the one week period the agency said well we've changed our mind we're going to remove you for two weeks or you're not employed for another week at that point their action is different from what they had decided the parties had agreed to on the original notice because of that agency change when they changed becomes the average personnel action which is what i was clearly trying to say on page five of my continuation processed as a discontinued service or tire matters the parties agreed in the settlement agreement and so it's the release and the claim don't line up at minimum which is what leads one to think well is this really the claim or is the claim really for enforcement of the terms of the set of the cream in that agreement incorporating the understanding that there would be a either time or you finding that the removal with rubber in order to save the settlement agreement with