serving his country in the air force but that's not the issue for the reader and because of that discrimination the burden then shifted back to the air force to prove that it would have cancelled his position upgrade for a valid the composition of the protocol office or the position upgrade itself but it was due to the fact that he was not available for military service but again i understand the background of this case but that's not the issue for us be have actually cancelled this promotion for valid reasons if there is no evidence in the record as i submit is the case here that they were actually in the process of of considering his request of comparing him to other individuals in the protocol office that or that were actually competing the position itself the rest of this can't suffice to show that they would have taken the adverse action only that there was the possibility that they may have taken the adversary action which is not sufficient to meet their burden your honor further the emma's previous decision in addition to relying on speculation and assumptions make several errors of law the first being that mr hayden was not in fact required to determine that mr hayden's promotion was governed under rule twenty one based on the the fact that there was allegedly another g s eleven person in a similar or identical position maybe a concluded that it did under air force rule twenty one that's a restaurant so you are challenging the fact that what you say that regulation to not allow for similar identical position and secondly that that individual could have been assigned those duties is both was incorrect as a matter of law and not supported by substantial out of stock the first being that she was a separate similar or identical position even if they were there is no showing or evidence that they actually could have been assigned those duties what does that mean it was an agency that well there are two ways your honor first would be that the individual or under that prong would be that they act that in other individuals actually has to have capacity to take on the additional duties that mr hayden had taken on which led to his promotion being submitted so you're saying there isn't substantial evidence that this was an employee who was similar or identical to whom the duties could be assigned correct insisting on that language having to do these can be assigned and you think that there isn't substantial evidence to support the board's finding them that in fact there's no evidence your honor the only record evidence on that point is the position of craig request itself which specifically contains a question about the capacity of other individuals to assume mr hayden studios and show that someone was available to take on mr hayden's duties in fact the position operator quest itself specifically indicates that there were not enough personnel to take on mr hayden's work  against your client or whatever it would have taken a lot more time for them affectionally the promotion you were seeking here so are we looking at the difference between two or three years the difference in haiti between  he was recommended for promotion i believe that the m s p be assumed that it would be completed within thirty days on remand so he was right under this record he was recommended for promotion and then he he left on the server and so he couldn't he wasn't available to under the interview that is correct your honor and then the and then the position was canceled upon his return they elected not to and they cancelled the promotion and elected not to seek it and then several years later mr hayden became eligible for the promotion to a g s twelve position in two thousand and fifteen he retains that position today with that i'm not competitive when you say he became eligible what's that not which allowed mr hayden to assume that position under a separate rule i'd also like to point out your honor turning now to the second prong about whether mr hayden would have won any a legit competition an important here is that the air force and the emmis p p merely assume that the g s twelve surplus employee would have been considered best or fully qualified under the air force manual there's not a de minimus requirement and in fact the air finding they just simply assumed that she was qualified and in fact i was i'm trying to convey that bester fully qualified moniker is not just a de minimus requirement it's actually and there's language disaffect in the air force manual that even if your best are fully qualified actually even if you're well qualified you're not best or fully qualified pursuant to the air force middle so it is not something that can just be substantiated based on the fact that she was a service employee there had to be separate evidence and showing that she knowledge skills and abilities to satisfactorily perform the duties of the position without undue interruption to the dean organization i'm not challenging that definition i would i would also suggest that be simply assumes that ms hayden would have actually taken the position if offered there is no evidence to that effect and in fact the m s p be test mr hayden to put forth evidence that she would not have accepted the position  the court the air force was required to show on remand whether competition was required for mr hayden to receive his upgrade to a g s twelve position and whether he would have been successful of doing so the board correctly found that the air force showed  preponderance of the evidence both that competition would have been triggered in general twenty one of the air force man all and that surface and floyd j h would have received the position ok i'm not sure that it would of don't write the regulations i would have exercised my discretion to do what the air force was required to show and again this is five years after the fact so what counsel asks the burden should be on the air forces to show the impossible which is something that did definitely happen that only could have happened with the air force showed through preponderance evidence was that in these circumstances this is what would have been recommended which  had already determined that mr hayden met his professional showing that that they cancellation was due to his military service the question wasn't whether the air force did in fact cancel the upgrade because mr hayden's military service is if they had proceeded further again within that approximately thirty day period what would have happened and what the substantial evidence shows is that there were there was at least one other employee  physician who was if you look at page appendix six eighty two it's an exactly parallel track to mr hague and they report two different first level supervisors at the same second level supervisor and up and as the staffing specialist testified before the board the that would have been sufficient to trigger competition and and as as you  the air force which have determined anyways even if rule twenty one was not trigger and this was a potential noncompetitive upgrade under rule twenty the air force could still have determined that principles of fairness require that competition be well you just use them in the difficulty here is you're right it's all hindsight introspection but you used the word cooling and that's troubling to me because i would think that your it's not clear and convincing evidence is republicans but you have to make the showing that you would not that quote do you agree with me that it's not that they had they have the discretion to do that you need to have shown something more than he could you're right and the air force definitely showed that and the administrative judge took into account that testimony of four air force witnesses all who testified that the position descriptions in in order m from the board but that would mean that his case would be sitting there we don't even know for how long so it was it's his choice to say do i want to get prompt we can ask about it but my understanding is it's just here i would be speculating entirely but i would i would agree that one but that was may have been an involuntary action your honor i do not know why petitioner proceeded in the manner that that he dead or why it wasn't appealed to the board as as you correctly stated there is no forum and so is clearly the most expeditious manner of getting at this is your understanding of the longstanding status story provisions have always been the same in other words the petitioner has the ability agreed a thirty day time period what have been reasonable to process mr hayden's request and then it would not have taken more than thirty days and because mr hayden was satisfied with that there there was no attempt to introduce further evidence that  would have occurred more quickly or it would have taken longer the other finding by by the board which which again is correct is it goes to the second prong which is that mr hayden would not have received this position due to the surplus have taken such and and substantial evidence shows she would have taken the position because j j was a surplus employee she had priority and and there's no dispute over that because the surplus employee is are in non appropriated positions a wing which is virtually the same as a g s twelve protocol specialist position in the b wing so basically the same position they're there apart by several miles they're still located at wright patterson air force base that the employee would choose to take that position to be better protected in the event of a reduction in force he she took the position she would no longer be a surprise employee correct she no longer would have been a service employee yes and and further that  explicit testimony then that and the air force yes there wouldn't have been a basis for it unless there was some sort of testimony or or other information but looking at again the record evidence discussing the surplus employees and the reasons behind it the fact that a surplus employee could have been removed in the event of a reduction in force is the statute all allows the petitioner to appeal directly to this court after the initial decision of the ale judge comes final after sixty days as for the rationale to come directly to this court it is because there is a lack of a quorum on the air most  to keep this case a warrant and way or to appeal once it becomes final yes your honor and frankly my client after seven years was just looking for closure on this issue to to address a few other points i think that the panel correctly seized on this issue that the evidence here even taking that at full face value which which you should not amount only to that mr hated may have had to compete and may have lost the resulting competition and that's i might be willing to entertain that but that's not the situation we have here and i think you know the hypothetical situation in any of these cases no your honor and that's actually a point i wanted to address for instance intervene v consumer products which is cited in the brief there are the individual did in fact show that there was discriminatory and a mess and then it shifted back and although he was not successful that was because he hadn't complied with the relevant application protocols and occurred right at the outset and in fact the only evidence that we have was that mr haven's position upgrade wasn't fact being processed they went to the next step in the in the procedure which is can you complete this desk top it at which point when this canceled doesn't don't other people on the food chain have to approve it or your honor i think that is what the air force would have you believe but as a matter of course these were granted and and that is an important consideration my question is i mean it either is or it isn't who signed off it's just a supervisor have final sign off on this or does it with the you say this isn't the way it's done or they always wink and nod and just sign anything not been successful and to the extent that they've only established that he could have had to compete and that he may have not been successful that's not sufficient to carry the burden from this case