2 ao금 3 oz Halt, my name is John Cody, and it's my honor privilege to be here for today representing the interest of the heat Durham, who is with me and see that the petitioner is failing. I'm not going to go into the facts and the background of the case that I believe has adequately been put forward in the race. You get right to what we see as the core issue and the main issue here today is whether Pete Dermour was wrongfully terminated from his position at the H.A.K. Mr. Dermour intends that he was wrongfully terminated. The agency and the merit system judge put forward proposition that Mr. Dermour was in what is known as an upper-out program, where you are hired, you go through a training program, if you don't complete that training program, says factually, then you're shown the door. Mr. Dermour intends that he was not in an upper-out training program. As you know from the briefs, he was a former H.A.K
.O. air controller and was part of the firing back in the early 80s. He was repyred and brought back into the H.A.K.O. as a controller at his former position. Counselor. Twenty years away. Yes. Yes. And so now we have to decide when he's brought in and the development will develop a level of whether he needs to advance in terms of an upper-out policy. And isn't that a factual question? Will you agree that whether or not the policy is an upper-out policy is a factual question? Well, yes
. And also. So don't we have to give to stand, you know, a reverse, if it's unsupported by substantial evidence, according to our standard of review? So what would you say about the evidence that the A.J. in his case relied upon, the policy talks about contingent, unsatisfactory, regression to full performance levels, that the training, that the A.J. training policy goes through in details, things like that. And why would you say that's not substantial? I mean, we don't think it's a side-out hour, you know, unfortunately. Well, what I like to point out in response to that is Mr. Dermur is an FPL. He is a full performance level controller. That also goes. Did he pass? Well, he is a full performance level controller, but he did need additional training because he had been away from the scope for so long. You know, as a air traffic, it's not the kind of thing that I think probably, I think you want them to get their practice training really big, so you know, really tripling, right? You know, you don't want them to come in, I mean, 20 years ago
. I imagine the technology must have changed substantially in that time. I mean, otherwise Mr. Dermur would have walked in and made them do the training like this, right? So the technology must have evolved quite a bit. Well, he would be the first one to tell you that he needed training, and that he was having trouble with some of the issues that related just to what you said. The technology was very different. What Mr. Dermur is saying is that by the very definition that the FAA uses, and I pointed that out in the appendix in a FAA personnel meeting, personnel meeting will 300-330-1 on the page 34. The very definition of a developmental is an air traffic controller who has not achieved FBL status at the assigned facility. I'll be with the facts here. The computer technology must be able to keep track of and separate airplanes in the air. What actually is the task of the modern air traffic controller, and what is the change that was required here? Well, there's different types of facilities. There's in-round facilities for planes that are at altitude and going between their destinations. Mr
. Dermur worked at a terminal facility where their planes take off and land and they control a certain amount of airspace, not all the way up to the top and not on the ground, which is controlled by the tower. What does this mean to figure out what the skill is required with Mr. Dermur with modern computers that must do the bulk of this work. Well, they have to maintain separation and time and distance in between. There must send signals that handle the majority of that. You've got more specific as to exactly what the controller is doing. I'm sure that as a backup, they would have to be able to remain in it. If there was a catch-guard failure of the radar scopes or the electronics, they have to have a skilled be able to fall back on it so that we know that those airplanes are not going to reach out. We're occupying the same space at the same time. Councillor, are you saying that Mr. Dermur was not an developmental air traffic controller or are you objecting to this classification in the network? Developed menals are ones that have to go through the upper-out program. Mr. Dermur says a developmental air traffic controller is any controller not fully certified a facility to which he is assigned
. Yes. Doesn't that describe Mr. Dermur? He was not fully certified. Man, that's half the definition. The rest of the definition at the bottom of that page says that if you are an FPL, which Mr. Dermur was, if you're an FPL, the only way you can become a developmental is if you go to a higher-grade facility. Mr. Dermur was an FPL, FPL, and the New York Tracom, which was the highest-grade facility in the country. His position is that as a repeater was in B.A. Yes, sir. But, you know, is there a 20-year gap? There's no distinction in the regulation. He could have been an FPL 15 years ago
. He could have been an FPL 15 years ago. That makes no distinction. You don't think his severance from the agency would be a distinction that's relevant here because it says an employee who achieved an FPL and then is reissired and promoted for higher-level facility and he comes back. It sort of talks about the continuity of service, sort of. It doesn't say that explicitly, but what am I interpreted that way? Do you think his severance might cause him to be treated as a developmental, even though he was once a plentiful time? Well, he was treated a little bit different because he did have some of those skills. He was not an office-free hire who doesn't have a clue about airspace and separation. He has those skills. Did they need home again? Yes, they did. What the distinction, as far as to the upper-out training program that we think is important here, is if he wasn't developmental and he didn't meet the requirements, then he should have been shown the door. But because he was a prior FPL, he should have been assigned to a lower rated facility than the Nantucket Radar Facility. There are various ratings of facilities all dependent on the amount of traffic that flows in and out of them. It's his contention that he should not have been let go. He should have been sent to a lower rated facility where he could handle the traffic flow
. Why isn't it fair for the agency to just say, okay, well, we don't necessarily need you at a lower rated facility. We need you here and if you can't pass the training program, then you can't send more or why isn't that far up and to do. Because it's their regulation to say that they're supposed to send him to a lower rated facility. So as a developmental, they can't show him the door. As a FPL and a former certified controller, they were under an obligation to try to find him a lower rated facility to work out. One of the other things that Mr. Gerber contends is that he did not receive added the training. I went into a great deal of detail in the brief, but there's one part of that that I think is very important and I'd like to point out is the time period between March of 2004 and his last skills check that he failed on June the 25th, 2000. A fully certified up-to-speed controller has to spend 16 hours a month in front of the scope, actually working and handling traffic. If that person does not, if he or she does not get that 16 hours a month, he has to have training. So in other words, somebody who is fully certified and doing this every day is too rusty if they haven't done it for 16 hours in the previous month. Between March of 2004 and June 25th of 2004, Mr. Gerber had three hours of credible OJT on the scope and then he was given a skills check on him
. He was set up to fail on that test. Not only that, it was in the Nantucket Radars busiest day of the year. I do have some time remaining, but I'm going to leave it for the moment. Thank you, Mr. Gerber. Good morning. May I please the court of the affairs I don't recall in the briefs where Mr. Gerber had already been sent to the P.L. He had already been sent to the P.L. I don't recall that. However, if he was 20 years ago
. How does that affect which he did argue that he deserved whatever status he had? Well, if you take a look at the training plan that's in the appendix. Are you in 834? No, no, 834 is the first of all, let's take a look at 834. It talks about whether developmental air traffic controller is. It says in 8, an air traffic controller, in any option, by the way, options are like, from what I understand. You have an option of determining whether you have an option of the trait, there are several types of options. By the way, to look over what happened with different options, there's also that in the letter. Who has not achieved full performance level for the facility for which a song, and then they go on to say, I asked Trinany, he asked to achieve full performance level. Now, he's never contended that I recall that he was at full FPL, full performance level for this facility. There's never been a mention where his previous facility was. He just said New York, he just had to know New York trait. I believe he said New York. He said New York. If it was New York, which was the busiest, there conceivably one of the busiest air or indoors, and 20 years ago, how does that affect this gauge? I think that he was fired 20 years ago
. He had no training sense, and he came back on fire because he deficient. No, he was fired because he was President Reagan fired. I'm not saying he was fired for any sort of discrepancy. By the way, this removal is a non-disciplinary removal. I see it, at least in the Collins brief. Back in 68, he was promoted and transferred to the Nanotopic Tower of Massachusetts in May 1968. Now, he was transferred to New York. That is correct, as a matter of fact, it's my understanding. He requested him back to Nanotopic. However, if you take a look at page 842, which is the training plan that was put in by Mr. Dermer, and this is an amendment 11-20-03, the first word there says developmental. He was FPL in Nanotopic 20 years ago, which there's at least something in the record to suggest that. How does that affect this gauge? I think it doesn't affect it in any way other than when he came back on the FAA, did not consider him FPL. He was in his considered developmental, and it was the FAA that made that decision. Mr. Dermer, he's FPL yet, he's not getting enough training. And you get training, I'm sure you get standing training all the time to keep your proficiency up. But the reason he was not FPL when he came back to this facility and under the FAA policy, you have to be FPL, if you're not according to the FAA policy, he was at developmental air traffic controller. And as a developmental air traffic controller, he had to pass training by his own admission. Mr. Patti just argued, he didn't pass the skills test. That could happen, I suppose, with somebody who was FPL, nonetheless, in a particular skills test, if it's administered for some reason, they might have to be FPL. They could be sure. But I think this argument, and let me see if I understand the difference between his argument and your position here. He is saying, as I understand it, and this is based on the top of A34, that the first sentence does not apply to him, the first sentence there about an ATS who is not a chief of full performance level for the facility. Does not apply to him because at one time he was FPL for that facility, and that based on the second sentence, or the third sentence, I guess it is, once you are FPL for a facility, then the first sentence never applies to you again
. He was in his considered developmental, and it was the FAA that made that decision. Mr. Dermer, he's FPL yet, he's not getting enough training. And you get training, I'm sure you get standing training all the time to keep your proficiency up. But the reason he was not FPL when he came back to this facility and under the FAA policy, you have to be FPL, if you're not according to the FAA policy, he was at developmental air traffic controller. And as a developmental air traffic controller, he had to pass training by his own admission. Mr. Patti just argued, he didn't pass the skills test. That could happen, I suppose, with somebody who was FPL, nonetheless, in a particular skills test, if it's administered for some reason, they might have to be FPL. They could be sure. But I think this argument, and let me see if I understand the difference between his argument and your position here. He is saying, as I understand it, and this is based on the top of A34, that the first sentence does not apply to him, the first sentence there about an ATS who is not a chief of full performance level for the facility. Does not apply to him because at one time he was FPL for that facility, and that based on the second sentence, or the third sentence, I guess it is, once you are FPL for a facility, then the first sentence never applies to you again. Your position, I understand it, is the agency is entitled to say, no, you may have historically been FPL for this facility, but you're not now based on their assessment of a front knee for verticals. I believe some here are. By the way, an important thing to keep in mind here, this wasn't the first time Mr. German failed his training. This was the second time by his own admission. He came back sometime, I think, in 2002 or early 2003. He claimed he had a hostile working partner that the newer air traffic controllers did not like him because he was a reinstated air traffic controller. So Mr. McDonald, who was the manager of the facility at the time, this is in the fact decided to change his schedule and then in June, I think, of 2001, make sure I get this correct, 2003, allowed there was a overtrip, if you recall in the briefs, in the other one. There was a review board, his first review board, he didn't pass. So they allowed him a second time to go through training. And it was the second training he failed that they decided that he was out, that he didn't achieve FPL. So this is not a case, it's a paper case, like we see a lot of times in MSPB cases
. Your position, I understand it, is the agency is entitled to say, no, you may have historically been FPL for this facility, but you're not now based on their assessment of a front knee for verticals. I believe some here are. By the way, an important thing to keep in mind here, this wasn't the first time Mr. German failed his training. This was the second time by his own admission. He came back sometime, I think, in 2002 or early 2003. He claimed he had a hostile working partner that the newer air traffic controllers did not like him because he was a reinstated air traffic controller. So Mr. McDonald, who was the manager of the facility at the time, this is in the fact decided to change his schedule and then in June, I think, of 2001, make sure I get this correct, 2003, allowed there was a overtrip, if you recall in the briefs, in the other one. There was a review board, his first review board, he didn't pass. So they allowed him a second time to go through training. And it was the second training he failed that they decided that he was out, that he didn't achieve FPL. So this is not a case, it's a paper case, like we see a lot of times in MSPB cases. We had a hearing in this case. The witnesses, including Mr. Dermer, came forward. They all testified about his performance, the judge made credibility determinations. He claimed he didn't get enough training. One of the details was set up for failure. Well, the judge disagreed. He was thrown in on the toughest day of the year after having only three hours on the scope. Well, you heard those. Yes, I heard that. If you take a look at the, at the Maya Pentex, where we put in the initial decision of pages 10 through 12, the administrative judge went through in detail what training Mr. Dermer received. And that his claim that he was set up for failure, I don't believe it was in the briefs, it's something that was already
. We had a hearing in this case. The witnesses, including Mr. Dermer, came forward. They all testified about his performance, the judge made credibility determinations. He claimed he didn't get enough training. One of the details was set up for failure. Well, the judge disagreed. He was thrown in on the toughest day of the year after having only three hours on the scope. Well, you heard those. Yes, I heard that. If you take a look at the, at the Maya Pentex, where we put in the initial decision of pages 10 through 12, the administrative judge went through in detail what training Mr. Dermer received. And that his claim that he was set up for failure, I don't believe it was in the briefs, it's something that was already. But if you look, she goes through it in a page 11 of our appendix. She was at every date and what his training was and the amount of hours. And then what she says is she had the testimony of, of his instructor. And by the way, they didn't seem to consider what had gone on on the first failure. They were strictly looking what happened for the second period of time. So they look and she in such detail, you know, that was really very helpful when you look at her decision. This is the amount of hours. And what she said was Mr. Dermer came in and he testified and he said, I didn't get enough training. Maybe he testified I was set up for failure. She said the record, her term was the record, belies what he was testifying to as what and that the testimony of the manager, Mr. McDonald, Mr. Beasley and the instructor, Mr
. But if you look, she goes through it in a page 11 of our appendix. She was at every date and what his training was and the amount of hours. And then what she says is she had the testimony of, of his instructor. And by the way, they didn't seem to consider what had gone on on the first failure. They were strictly looking what happened for the second period of time. So they look and she in such detail, you know, that was really very helpful when you look at her decision. This is the amount of hours. And what she said was Mr. Dermer came in and he testified and he said, I didn't get enough training. Maybe he testified I was set up for failure. She said the record, her term was the record, belies what he was testifying to as what and that the testimony of the manager, Mr. McDonald, Mr. Beasley and the instructor, Mr. Laurie, all were supported by documentation. As Judge Moore pointed out, there was substantial evidence here that Mr. Dermer was a developmental air traffic controller that he was in and up and out program that he failed it and that they even considered trying to find another job for him and came to the conclusion that the skills that he was lacking in, I think the term was he had reached a plateau. So that those skills were so lacking that they couldn't find another position for an air traffic controller. So the evidence is substantial and as we pointed out in our read, if there's a rational basis for the judge's decision that judicial function is concluded and we asked the court to affirm the judge's decision in this case. You referred us earlier in talking about the question of whether he was treated or properly treated as a developmentalist and a question of the FPL right at the time he returned. I think a gentleman, a training call, a training call. The brief of the, I think it was paid for 842 or 41 to find an air traffic controller. And the word right there, it's a developmental. Now, is there anything else here in the question on the part in the material that we have access to that would provide additional support for the conclusion? He was, in fact, developmental and the decision was made, which the agency was free to make to decide whether or not. We didn't put any of the testimony. The judge considered all the testimony and came to the conclusion based upon what the FAA supervisors were testifying to that he was developmental in an up and out program. And then I would just take the fact that he had not been an air traffic controller
. Laurie, all were supported by documentation. As Judge Moore pointed out, there was substantial evidence here that Mr. Dermer was a developmental air traffic controller that he was in and up and out program that he failed it and that they even considered trying to find another job for him and came to the conclusion that the skills that he was lacking in, I think the term was he had reached a plateau. So that those skills were so lacking that they couldn't find another position for an air traffic controller. So the evidence is substantial and as we pointed out in our read, if there's a rational basis for the judge's decision that judicial function is concluded and we asked the court to affirm the judge's decision in this case. You referred us earlier in talking about the question of whether he was treated or properly treated as a developmentalist and a question of the FPL right at the time he returned. I think a gentleman, a training call, a training call. The brief of the, I think it was paid for 842 or 41 to find an air traffic controller. And the word right there, it's a developmental. Now, is there anything else here in the question on the part in the material that we have access to that would provide additional support for the conclusion? He was, in fact, developmental and the decision was made, which the agency was free to make to decide whether or not. We didn't put any of the testimony. The judge considered all the testimony and came to the conclusion based upon what the FAA supervisors were testifying to that he was developmental in an up and out program. And then I would just take the fact that he had not been an air traffic controller. He may have been a reinstated air traffic controller. But he hadn't been an air traffic controller for 20 years. And that in itself, they were just as judge orator point out, we assume that there had been substantial changes in the program or the way air traffic controllers do their job. But what I, if I may, add something, what I do understand is the human element is still the major element. Even though we have computers, it is still the skills of anyone who's seen, I guess, like movie light, the United 93. You see what their traffic controllers do. They are in constant contact and they are constantly, it's a very stressed related job. And that's why they, that's the reason you probably know from other cases, they're a lot to retire. And what I'm saying is that the human element is the primary element in the air traffic control system. Mr. Dermer, however good he had been 20 years previously, wasn't able to make, I'm sorry for that he didn't make the work. Let me, let me see if to, to pursue this at PL versus developmental issue one, one step further. Is it the agency's position that when somebody comes back in situations such as Mr
. He may have been a reinstated air traffic controller. But he hadn't been an air traffic controller for 20 years. And that in itself, they were just as judge orator point out, we assume that there had been substantial changes in the program or the way air traffic controllers do their job. But what I, if I may, add something, what I do understand is the human element is still the major element. Even though we have computers, it is still the skills of anyone who's seen, I guess, like movie light, the United 93. You see what their traffic controllers do. They are in constant contact and they are constantly, it's a very stressed related job. And that's why they, that's the reason you probably know from other cases, they're a lot to retire. And what I'm saying is that the human element is the primary element in the air traffic control system. Mr. Dermer, however good he had been 20 years previously, wasn't able to make, I'm sorry for that he didn't make the work. Let me, let me see if to, to pursue this at PL versus developmental issue one, one step further. Is it the agency's position that when somebody comes back in situations such as Mr. Dermer, is that the agency is free, notwithstanding a prior certification of PL, to make an independent determination as to whether to treat that individual as development. I believe so, you're right. I think the evidence to that effect, if you remember, call it any of the materials. I can't recall other than the witnesses who were all experienced FAA individuals testified that he would develop mental and should be. That's what the judge, the judge faced her decision on the testimony of the individuals that came before her, she made her ability to become a nation. So again, I would ask that the court of firm decision in this case, I thank you very much. Very briefly. What's the FAA? What's the FAA? What's the FAA? What's the FAA? That's what it does that you don't believe the record shows that he was, but you don't lose an FBL status, you just become non-currents, or not certified. This is a great lesson pointed to a document where he was listed, is to develop. Yes, on page H21, in rebuttal to that, I'd like to point out that there were two witnesses at the hearing, two FAA controller, who worked in hierarchy of Mr. Darmour, Mr. Beasley and Mr. Utowitz, who were both their testimony in the appendix
. Dermer, is that the agency is free, notwithstanding a prior certification of PL, to make an independent determination as to whether to treat that individual as development. I believe so, you're right. I think the evidence to that effect, if you remember, call it any of the materials. I can't recall other than the witnesses who were all experienced FAA individuals testified that he would develop mental and should be. That's what the judge, the judge faced her decision on the testimony of the individuals that came before her, she made her ability to become a nation. So again, I would ask that the court of firm decision in this case, I thank you very much. Very briefly. What's the FAA? What's the FAA? What's the FAA? What's the FAA? That's what it does that you don't believe the record shows that he was, but you don't lose an FBL status, you just become non-currents, or not certified. This is a great lesson pointed to a document where he was listed, is to develop. Yes, on page H21, in rebuttal to that, I'd like to point out that there were two witnesses at the hearing, two FAA controller, who worked in hierarchy of Mr. Darmour, Mr. Beasley and Mr. Utowitz, who were both their testimony in the appendix. They both testified that he was not a developmental, that he was a rehire, and that he was not subject to the same up-and-out training program. Also, on page A21 of the appendix, the rehire, or the agreement that brought Mr. Darmour back into the FAA, states that he's to be brought back as a CP-8, that is not a developmental level. That is the level that he left to 1982. What we just said, ATC-8, and I'm missing something, I'm looking at page A21, and it says, except if position is an aerographic control specialist, it's a great problem level of A, and it's G-8. Well, the regulations state that an ATC, if I'm understanding it right, says, developmental. An ATC and any option would not achieve the whole performance level of the facility which is signed. So just saying, because an ATC doesn't mean he's not a developmental. That's true. That's true, because if you use the first part of that definition that we had before on page A-34, there is a possibility that somebody could be at a level 8 and then be a developmental if they moved to a higher level facility. But that was not the case with you. In summary, then, Mr. Darmour is requesting that the case be remanded to the board with instructions that he'd be reinstated, and where he is signed to a lower grade facility if required
. They both testified that he was not a developmental, that he was a rehire, and that he was not subject to the same up-and-out training program. Also, on page A21 of the appendix, the rehire, or the agreement that brought Mr. Darmour back into the FAA, states that he's to be brought back as a CP-8, that is not a developmental level. That is the level that he left to 1982. What we just said, ATC-8, and I'm missing something, I'm looking at page A21, and it says, except if position is an aerographic control specialist, it's a great problem level of A, and it's G-8. Well, the regulations state that an ATC, if I'm understanding it right, says, developmental. An ATC and any option would not achieve the whole performance level of the facility which is signed. So just saying, because an ATC doesn't mean he's not a developmental. That's true. That's true, because if you use the first part of that definition that we had before on page A-34, there is a possibility that somebody could be at a level 8 and then be a developmental if they moved to a higher level facility. But that was not the case with you. In summary, then, Mr. Darmour is requesting that the case be remanded to the board with instructions that he'd be reinstated, and where he is signed to a lower grade facility if required. And that's all I have. If you all have any questions. Thank you, Cody. The big, smart, nice case is, of course, a stall for the United States.
2 ao금 3 oz Halt, my name is John Cody, and it's my honor privilege to be here for today representing the interest of the heat Durham, who is with me and see that the petitioner is failing. I'm not going to go into the facts and the background of the case that I believe has adequately been put forward in the race. You get right to what we see as the core issue and the main issue here today is whether Pete Dermour was wrongfully terminated from his position at the H.A.K. Mr. Dermour intends that he was wrongfully terminated. The agency and the merit system judge put forward proposition that Mr. Dermour was in what is known as an upper-out program, where you are hired, you go through a training program, if you don't complete that training program, says factually, then you're shown the door. Mr. Dermour intends that he was not in an upper-out training program. As you know from the briefs, he was a former H.A.K.O. air controller and was part of the firing back in the early 80s. He was repyred and brought back into the H.A.K.O. as a controller at his former position. Counselor. Twenty years away. Yes. Yes. And so now we have to decide when he's brought in and the development will develop a level of whether he needs to advance in terms of an upper-out policy. And isn't that a factual question? Will you agree that whether or not the policy is an upper-out policy is a factual question? Well, yes. And also. So don't we have to give to stand, you know, a reverse, if it's unsupported by substantial evidence, according to our standard of review? So what would you say about the evidence that the A.J. in his case relied upon, the policy talks about contingent, unsatisfactory, regression to full performance levels, that the training, that the A.J. training policy goes through in details, things like that. And why would you say that's not substantial? I mean, we don't think it's a side-out hour, you know, unfortunately. Well, what I like to point out in response to that is Mr. Dermur is an FPL. He is a full performance level controller. That also goes. Did he pass? Well, he is a full performance level controller, but he did need additional training because he had been away from the scope for so long. You know, as a air traffic, it's not the kind of thing that I think probably, I think you want them to get their practice training really big, so you know, really tripling, right? You know, you don't want them to come in, I mean, 20 years ago. I imagine the technology must have changed substantially in that time. I mean, otherwise Mr. Dermur would have walked in and made them do the training like this, right? So the technology must have evolved quite a bit. Well, he would be the first one to tell you that he needed training, and that he was having trouble with some of the issues that related just to what you said. The technology was very different. What Mr. Dermur is saying is that by the very definition that the FAA uses, and I pointed that out in the appendix in a FAA personnel meeting, personnel meeting will 300-330-1 on the page 34. The very definition of a developmental is an air traffic controller who has not achieved FBL status at the assigned facility. I'll be with the facts here. The computer technology must be able to keep track of and separate airplanes in the air. What actually is the task of the modern air traffic controller, and what is the change that was required here? Well, there's different types of facilities. There's in-round facilities for planes that are at altitude and going between their destinations. Mr. Dermur worked at a terminal facility where their planes take off and land and they control a certain amount of airspace, not all the way up to the top and not on the ground, which is controlled by the tower. What does this mean to figure out what the skill is required with Mr. Dermur with modern computers that must do the bulk of this work. Well, they have to maintain separation and time and distance in between. There must send signals that handle the majority of that. You've got more specific as to exactly what the controller is doing. I'm sure that as a backup, they would have to be able to remain in it. If there was a catch-guard failure of the radar scopes or the electronics, they have to have a skilled be able to fall back on it so that we know that those airplanes are not going to reach out. We're occupying the same space at the same time. Councillor, are you saying that Mr. Dermur was not an developmental air traffic controller or are you objecting to this classification in the network? Developed menals are ones that have to go through the upper-out program. Mr. Dermur says a developmental air traffic controller is any controller not fully certified a facility to which he is assigned. Yes. Doesn't that describe Mr. Dermur? He was not fully certified. Man, that's half the definition. The rest of the definition at the bottom of that page says that if you are an FPL, which Mr. Dermur was, if you're an FPL, the only way you can become a developmental is if you go to a higher-grade facility. Mr. Dermur was an FPL, FPL, and the New York Tracom, which was the highest-grade facility in the country. His position is that as a repeater was in B.A. Yes, sir. But, you know, is there a 20-year gap? There's no distinction in the regulation. He could have been an FPL 15 years ago. He could have been an FPL 15 years ago. That makes no distinction. You don't think his severance from the agency would be a distinction that's relevant here because it says an employee who achieved an FPL and then is reissired and promoted for higher-level facility and he comes back. It sort of talks about the continuity of service, sort of. It doesn't say that explicitly, but what am I interpreted that way? Do you think his severance might cause him to be treated as a developmental, even though he was once a plentiful time? Well, he was treated a little bit different because he did have some of those skills. He was not an office-free hire who doesn't have a clue about airspace and separation. He has those skills. Did they need home again? Yes, they did. What the distinction, as far as to the upper-out training program that we think is important here, is if he wasn't developmental and he didn't meet the requirements, then he should have been shown the door. But because he was a prior FPL, he should have been assigned to a lower rated facility than the Nantucket Radar Facility. There are various ratings of facilities all dependent on the amount of traffic that flows in and out of them. It's his contention that he should not have been let go. He should have been sent to a lower rated facility where he could handle the traffic flow. Why isn't it fair for the agency to just say, okay, well, we don't necessarily need you at a lower rated facility. We need you here and if you can't pass the training program, then you can't send more or why isn't that far up and to do. Because it's their regulation to say that they're supposed to send him to a lower rated facility. So as a developmental, they can't show him the door. As a FPL and a former certified controller, they were under an obligation to try to find him a lower rated facility to work out. One of the other things that Mr. Gerber contends is that he did not receive added the training. I went into a great deal of detail in the brief, but there's one part of that that I think is very important and I'd like to point out is the time period between March of 2004 and his last skills check that he failed on June the 25th, 2000. A fully certified up-to-speed controller has to spend 16 hours a month in front of the scope, actually working and handling traffic. If that person does not, if he or she does not get that 16 hours a month, he has to have training. So in other words, somebody who is fully certified and doing this every day is too rusty if they haven't done it for 16 hours in the previous month. Between March of 2004 and June 25th of 2004, Mr. Gerber had three hours of credible OJT on the scope and then he was given a skills check on him. He was set up to fail on that test. Not only that, it was in the Nantucket Radars busiest day of the year. I do have some time remaining, but I'm going to leave it for the moment. Thank you, Mr. Gerber. Good morning. May I please the court of the affairs I don't recall in the briefs where Mr. Gerber had already been sent to the P.L. He had already been sent to the P.L. I don't recall that. However, if he was 20 years ago. How does that affect which he did argue that he deserved whatever status he had? Well, if you take a look at the training plan that's in the appendix. Are you in 834? No, no, 834 is the first of all, let's take a look at 834. It talks about whether developmental air traffic controller is. It says in 8, an air traffic controller, in any option, by the way, options are like, from what I understand. You have an option of determining whether you have an option of the trait, there are several types of options. By the way, to look over what happened with different options, there's also that in the letter. Who has not achieved full performance level for the facility for which a song, and then they go on to say, I asked Trinany, he asked to achieve full performance level. Now, he's never contended that I recall that he was at full FPL, full performance level for this facility. There's never been a mention where his previous facility was. He just said New York, he just had to know New York trait. I believe he said New York. He said New York. If it was New York, which was the busiest, there conceivably one of the busiest air or indoors, and 20 years ago, how does that affect this gauge? I think that he was fired 20 years ago. He had no training sense, and he came back on fire because he deficient. No, he was fired because he was President Reagan fired. I'm not saying he was fired for any sort of discrepancy. By the way, this removal is a non-disciplinary removal. I see it, at least in the Collins brief. Back in 68, he was promoted and transferred to the Nanotopic Tower of Massachusetts in May 1968. Now, he was transferred to New York. That is correct, as a matter of fact, it's my understanding. He requested him back to Nanotopic. However, if you take a look at page 842, which is the training plan that was put in by Mr. Dermer, and this is an amendment 11-20-03, the first word there says developmental. He was FPL in Nanotopic 20 years ago, which there's at least something in the record to suggest that. How does that affect this gauge? I think it doesn't affect it in any way other than when he came back on the FAA, did not consider him FPL. He was in his considered developmental, and it was the FAA that made that decision. Mr. Dermer, he's FPL yet, he's not getting enough training. And you get training, I'm sure you get standing training all the time to keep your proficiency up. But the reason he was not FPL when he came back to this facility and under the FAA policy, you have to be FPL, if you're not according to the FAA policy, he was at developmental air traffic controller. And as a developmental air traffic controller, he had to pass training by his own admission. Mr. Patti just argued, he didn't pass the skills test. That could happen, I suppose, with somebody who was FPL, nonetheless, in a particular skills test, if it's administered for some reason, they might have to be FPL. They could be sure. But I think this argument, and let me see if I understand the difference between his argument and your position here. He is saying, as I understand it, and this is based on the top of A34, that the first sentence does not apply to him, the first sentence there about an ATS who is not a chief of full performance level for the facility. Does not apply to him because at one time he was FPL for that facility, and that based on the second sentence, or the third sentence, I guess it is, once you are FPL for a facility, then the first sentence never applies to you again. Your position, I understand it, is the agency is entitled to say, no, you may have historically been FPL for this facility, but you're not now based on their assessment of a front knee for verticals. I believe some here are. By the way, an important thing to keep in mind here, this wasn't the first time Mr. German failed his training. This was the second time by his own admission. He came back sometime, I think, in 2002 or early 2003. He claimed he had a hostile working partner that the newer air traffic controllers did not like him because he was a reinstated air traffic controller. So Mr. McDonald, who was the manager of the facility at the time, this is in the fact decided to change his schedule and then in June, I think, of 2001, make sure I get this correct, 2003, allowed there was a overtrip, if you recall in the briefs, in the other one. There was a review board, his first review board, he didn't pass. So they allowed him a second time to go through training. And it was the second training he failed that they decided that he was out, that he didn't achieve FPL. So this is not a case, it's a paper case, like we see a lot of times in MSPB cases. We had a hearing in this case. The witnesses, including Mr. Dermer, came forward. They all testified about his performance, the judge made credibility determinations. He claimed he didn't get enough training. One of the details was set up for failure. Well, the judge disagreed. He was thrown in on the toughest day of the year after having only three hours on the scope. Well, you heard those. Yes, I heard that. If you take a look at the, at the Maya Pentex, where we put in the initial decision of pages 10 through 12, the administrative judge went through in detail what training Mr. Dermer received. And that his claim that he was set up for failure, I don't believe it was in the briefs, it's something that was already. But if you look, she goes through it in a page 11 of our appendix. She was at every date and what his training was and the amount of hours. And then what she says is she had the testimony of, of his instructor. And by the way, they didn't seem to consider what had gone on on the first failure. They were strictly looking what happened for the second period of time. So they look and she in such detail, you know, that was really very helpful when you look at her decision. This is the amount of hours. And what she said was Mr. Dermer came in and he testified and he said, I didn't get enough training. Maybe he testified I was set up for failure. She said the record, her term was the record, belies what he was testifying to as what and that the testimony of the manager, Mr. McDonald, Mr. Beasley and the instructor, Mr. Laurie, all were supported by documentation. As Judge Moore pointed out, there was substantial evidence here that Mr. Dermer was a developmental air traffic controller that he was in and up and out program that he failed it and that they even considered trying to find another job for him and came to the conclusion that the skills that he was lacking in, I think the term was he had reached a plateau. So that those skills were so lacking that they couldn't find another position for an air traffic controller. So the evidence is substantial and as we pointed out in our read, if there's a rational basis for the judge's decision that judicial function is concluded and we asked the court to affirm the judge's decision in this case. You referred us earlier in talking about the question of whether he was treated or properly treated as a developmentalist and a question of the FPL right at the time he returned. I think a gentleman, a training call, a training call. The brief of the, I think it was paid for 842 or 41 to find an air traffic controller. And the word right there, it's a developmental. Now, is there anything else here in the question on the part in the material that we have access to that would provide additional support for the conclusion? He was, in fact, developmental and the decision was made, which the agency was free to make to decide whether or not. We didn't put any of the testimony. The judge considered all the testimony and came to the conclusion based upon what the FAA supervisors were testifying to that he was developmental in an up and out program. And then I would just take the fact that he had not been an air traffic controller. He may have been a reinstated air traffic controller. But he hadn't been an air traffic controller for 20 years. And that in itself, they were just as judge orator point out, we assume that there had been substantial changes in the program or the way air traffic controllers do their job. But what I, if I may, add something, what I do understand is the human element is still the major element. Even though we have computers, it is still the skills of anyone who's seen, I guess, like movie light, the United 93. You see what their traffic controllers do. They are in constant contact and they are constantly, it's a very stressed related job. And that's why they, that's the reason you probably know from other cases, they're a lot to retire. And what I'm saying is that the human element is the primary element in the air traffic control system. Mr. Dermer, however good he had been 20 years previously, wasn't able to make, I'm sorry for that he didn't make the work. Let me, let me see if to, to pursue this at PL versus developmental issue one, one step further. Is it the agency's position that when somebody comes back in situations such as Mr. Dermer, is that the agency is free, notwithstanding a prior certification of PL, to make an independent determination as to whether to treat that individual as development. I believe so, you're right. I think the evidence to that effect, if you remember, call it any of the materials. I can't recall other than the witnesses who were all experienced FAA individuals testified that he would develop mental and should be. That's what the judge, the judge faced her decision on the testimony of the individuals that came before her, she made her ability to become a nation. So again, I would ask that the court of firm decision in this case, I thank you very much. Very briefly. What's the FAA? What's the FAA? What's the FAA? What's the FAA? That's what it does that you don't believe the record shows that he was, but you don't lose an FBL status, you just become non-currents, or not certified. This is a great lesson pointed to a document where he was listed, is to develop. Yes, on page H21, in rebuttal to that, I'd like to point out that there were two witnesses at the hearing, two FAA controller, who worked in hierarchy of Mr. Darmour, Mr. Beasley and Mr. Utowitz, who were both their testimony in the appendix. They both testified that he was not a developmental, that he was a rehire, and that he was not subject to the same up-and-out training program. Also, on page A21 of the appendix, the rehire, or the agreement that brought Mr. Darmour back into the FAA, states that he's to be brought back as a CP-8, that is not a developmental level. That is the level that he left to 1982. What we just said, ATC-8, and I'm missing something, I'm looking at page A21, and it says, except if position is an aerographic control specialist, it's a great problem level of A, and it's G-8. Well, the regulations state that an ATC, if I'm understanding it right, says, developmental. An ATC and any option would not achieve the whole performance level of the facility which is signed. So just saying, because an ATC doesn't mean he's not a developmental. That's true. That's true, because if you use the first part of that definition that we had before on page A-34, there is a possibility that somebody could be at a level 8 and then be a developmental if they moved to a higher level facility. But that was not the case with you. In summary, then, Mr. Darmour is requesting that the case be remanded to the board with instructions that he'd be reinstated, and where he is signed to a lower grade facility if required. And that's all I have. If you all have any questions. Thank you, Cody. The big, smart, nice case is, of course, a stall for the United States