have not done anything and are not expected to do anything in light of the final board order here and the finale did depend on whether some other agency might do something employees would not know when to appeal it couldn't tell when  review and the government doesn't dispute that when there is deprivation of property appropriate post removal review so the board was supposed to evaluate her performance not binding on us if it were a decision of this court would you agree it's directly on point so i think one would have to ask whether that would still be good law in light of l again the supreme court's decision in fell she was prolifically deprived of due process in this case i suppose that that was my view how could she ever get in front of an article three tribunals is the simply no way at all i mean i understand your argument about how she did not perfect an appeal of which we have jurisdiction in this case is there any way she could have judge to make rulings she might have been my the obligation to make a willing might have made a ruling on the merits that might have created the final appeal of order to this court  what about going to district court those factual circumstances are not here because the order referring rafa's that she purports to appeal in this case it does not contain that decision on anything right and there were no motions for additional understand your response to my initial question if she because she did indicate in her briefing to be ale j that she thinks it's wrong that the ale to review this that she believed she was not able to process she made those arguments but then ultimately she seemed to acquiesce i don't remember the precise language in the idea that the a l j couldn't actually decide the constitutional concerns that she had and so they're not addressing this opinion alternately  the referral order so are you saying that if she had said to l j i want you to address my due process you must address my due process you are required to address my due process issues if she had made arguments like that and if the ale jay had responded by saying we can't actually constitutionality because we're an administrative tribunal or whatever if they had declined to do so and indicated any particle partial reason th the entire due process issue would be squarely in front of this court i would say it might be to the extent that actual constitutional argument was developed below your honor is correct that the record reflects generalized statement of reasons for the l j that she was not being given all that she felt that was her do procedurally and substantively but there is in the record below absolutely no development of the argument there's no citation to any authority there's no application of law to fact there's no developments of fact to support any of those issues so the a l j did what he was obligated to clarify i think we're dealing with an age race here rather than aylesbury but on the merits would you say that there was so constitutional right to a particular drop the federal government has been denied a notice an opportunity you heard not procedural to process under the constitution but she skipped over that initial inquiry of whether she had a property or liberty interest at stake in the st instance and a possession but no authority has ever done so in the past and the authority to have considered the issue have limited the property right to continued employment her continued appointment has never been at stake here she before t potential salary increases be diminished by virtue of the move from s c s to a g s fifteen she is not going to receive the increases she would have as s c s she's going to ultimately have a asked if my understanding is correct of the fact she will not run in a in a just a team position you're correct she will not ultimately earn what she might have earned as an s p s but courtship consider the is because there's actually a stair a statute that guarantees her continued status as an s p s except for two things for poor performance or misconduct so she's got sort of a session terry guarantee of remaining in the reduction in grades council thank you your are your responses were helpful to me on this point but do you mind if i pivot you know i have a question about misconduct versus poor performance one of the things that is troubling the about the course of government action in this case is that congress clearly contemplated two scenarios in which s e s employees could be removed they could be removed for misconduct or they could be removed for poor performance and there is no question among any of the parties is undisputed that if she were removed for misconduct she would absolutely have a right of appeal and she could assert the due process concerns that she has in this case but if she is  instead removed for poor performance the government's position is she has no rights of appeal at all is that correct so so what is the reason she was removed in this case since congress has laid out two alternative paths one of which they clearly contemplated if misconduct is the basis for her removal she has a right to appeal because you know when it comes to misconduct my children would be the st ones to tell you there are a lot of extenuating circumstances my you know yes i use the cookies but you deprive me of a lunch or whatever you know there are often and i don't mean to be little her claims by the way by analogizing them to my kids but in any event the point being congress clearly contemplated a right of appeal if misconduct formed the basis for the removal what is the that doesn't answer my question why was she deemed to have poorly performed because the under secretary of articulated and her will move on notice found that she had lost confidence in her ability grades that he wouldn't otherwise have had was not the issue yet and isn't that the very misconduct so isn't it you see my point and you're trying to evade it which i understand why because it's very hard it's hard for me to believe if i'm a textualist that congress intended someone who was fired solely on the basis of an act of misconduct should have a right of appeal and yet congress would have permitted the agency to morph what is clearly only a misconduct determination into a poor performance rubric such that they could evade the right of appeal she would otherwise have had that's my concern is base criminal but if the actions may or may not have any difference of this conduct then the agency has the option to proceed after i just have to seventy five or chapter thirty five that is at their election and about point the agency and recognition of her thirty years of service and the fact that this was a single instance albeit a great one instead of going that route they automatically were results in her removal from all government service or could a removal for misconduct also amount to a you know a transfer or a demotion to a g s fifteen or whatever you want to call it last question is it really the case the facts in this case that her supervising authority who is the person who does her performance reviews rated her as an outstanding for the relevant time period and even when presented with evidence that she may have committed improper personnel procedures in the course of hiring an employee he nonetheless said even taking that into account i still continue to maintain her outstanding performance rating as a five and that in my thirty years of government service i've never seen someone better than her basically i may not be getting it one hundred percent exactly right but are those the facts  allegations that the secretary of the army does not dispute the facts the facts do believe she was given all the process to which she was to she was not counseled let me let me just i know your time is up but i'm going to stop you you might be right on jurisdiction you may even be right on the property right but i think this lady was horrifically deprived of due process and i'm embarrassed that you're standing here saying otherwise i think that the process the secretive process that took her out of the ability to respond without knowledge of what was going on even the very supervisor who supervised her for many years and who continued to think she was outstanding was cut out of the process of deciding what her performance review should be for that year i think that that behavior was outrageous and i absolutely think it violates due process and since your time is up i suggest you sit down and you may have one point one you may have one two but you will never win with me on point three  but since we're over time i don't want to prolong this too long but i would just like clarification following up on ted moore's point which is i guess i was surprised by your answer early on because i read i didn't read the government's brief as for davis versus billing him from the d c district court and there are other post elgin district court cases where employees not entitled to m s p p review which i thought you were arguing was this case get a district court case forward to process challenge no i don't expect the government to say positively she does have a challenge but i guess i was a little surprised because you seem to suggest that the even that avenue of trying due process challenge in district court was somehow or foreclosed or not appropriate and i was surprised by that is that your position your honor i think it's a very nuanced question that would be highly fact dependent so you're right i think that this is also an issue of st impression to what the c f r a provides remedies for someone in this session so those there's a lot of undecided territory here and correct yeah all right thank you mr walker will come back to you for a bottle no thank you your honor and i'll get back to the jurisdictional question very appears to admit that would be sufficient if we raise below the argument that she was entitled to a decision from the l g a and she did that and it's important to keep the entire context of this proceeding in view the algae repeatedly not just at the other side which is is it not your view that if things don't go the way you'd prefer and the court the court today that you think you do have a posse a chance or a likelihood of being able to to