Legal Case Summary

. The first is that what evidence was there that he actually contacted the agency? Did he submit any evidence of a call of memo communication and email communication? As indicated in the administrative judges initial decision he stayed candidly in a deposition that he had contacted the agency so Violet Deposition which was introduced into record at the board level Mr. Ererson requested re-employment. Did that testimony make clear that when he contacted the agency he did request re-employment? The deposition made clear that only that he had contacted and expressed a concern that he was removed from employment and didn't think it was justified because he was covered under you Sarah. Did it go beyond that and they asked to actually be re-employed? It was the petitioner's position that he didn't have a position to be re-employed too. He was terminated in 2000. Therefore it seemed as though it would have been for not to request re-employment. He did complain that he was actually removed from service while he was protected from the uniform services and the agency maintained that he had been properly removed by virtue of exceeding the five year statutory cap. Mr. Ererson's position that at the time the removal he was still covered under you Sarah and he submitted various orders and evidence at the board level which indicated that he fell within the exemptions of 43-12 which enumerates roughly seven exemptions and a significant portion of his time was covered under those exemptions under the cap. Moreover, the time period that he served on military duty after he was removed was improperly considered when the board determined whether or not the agency had violated you Sarah by virtue of the fact that he simply remained on military duty to mitigate the damages that he had incurred after the postal service terminated in his employment. I think the record reflects that he served a total of 23 years in the military. Is that right? In total that's correct. Was he retired out of the military? That's correct. That happened in 2005. Correct. What is your view as to the application of the five year limit which I think appears in 43-12 with respect to 43-11 and let me explain what I mean by that. Do you believe that if someone is gone for five years that 43-11 I understand that that's not the case in this instance at least as of 2000 but if someone were gone for five years would 43-11 not apply to them? If someone, your honor's question is contingent on other factors I would think. For example if someone does not intend to return to civilian employment then for all intents and purposes 43-11 would not cover that individual

. Let's take someone who doesn't make clear whether they do intend or not but they simply depart for let's say six years and let's set aside any exceptions to the period. They're gone for six years. They wouldn't have re-employment rights I take it under 43-12 correct? If there are no exemptions that's correct. Okay now do they nonetheless have rights under 43-11? It wasn't clear to me from your brief whether you were making an argument that 43-11 would apply even if 43-12 did not. If 43-11 would apply even if 43-12 would not because if the individual for example Mr. Erickson was removed from employment prior to the expiration of the six years there was a time period that he was still covered by you Sarah and could have for seeably requested his position. Wait wait wait wait you've lost me there. My hypothetical is and I'm not talking about Mr. Erickson's case now but just a hypothetical is that the individual is gone for long enough five years not counting exceptions. He's gone for long enough that he wouldn't have re-employment rights under 43-12 okay? Does he nonetheless have anti-discrimination rights under 43-11 or does 43-11 right anti-discrimination rights are they coterminous with the 43-12 re-employment rights in time? 43-11 is contingent on 43-12 by virtue of the fact that you Sarah only applies to non-career military employees. So if someone exceeds the five year cap and arguably they're not covered under you Sarah by virtue of the fact that they're not deemed to be a civilian employee they haven't complied with the act. However in the case and I realize that you're hypotenetic. I think you've answered my question. With the case of Mr. Erickson though regardless of the exceptions well he was inclusive 43-12 in the exceptions he was covered by you Sarah at the time of his removal. The agency submitted a bio letter to him indicating that he had exceeded the five year cap and he did and they did that erroneously. So after being informed he was terminated from employment he remained on military service. He did that to mitigate his damages

. So there was no position for him to ever reapply to that doesn't obviate the fact that the postal service still violated 43-11 while Mr. Erickson was still covered by the act. And he was harmed by that. He has been prevented from obtaining alternative employment with other federal agencies by virtue of the prior termination as reflected on his F-50. He has been precluded from readily obtaining alternative employment positions in the private sector. So the simple act of removing him while he was covered by you Sarah has caused significant harm to him. So whether or not he was entitled to later re-employment does not prevent this court from finding that the postal service violated you Sarah in the first instance in 2000 when they fired him and he was covered by the act. And what year was that violated your allegation as 2005 or 2001? In 2000. Correct. The agency proposed his removal in February 16th of 2000. It was effectuated on April 7th 2000. And during that time period he hadn't exceeded the cap moreover. This isn't a situation like this court found in Woodman, V-O-P-M. This is a situation where they knew when Mr. Erickson was going to be returning because he had had a conversation with a human resource as official as reflected in the response brief and in the response appendix. And they were able to identify when his orders expired which were in September of 2001. He indicated in intention of staying on military duty until that order expired. So this isn't a case where as in Woodman Mr

. Erickson was on military service for an extended period of time and they just were not aware of if or when he would ever return. Well now, please go ahead. The record, and I know the portion of the record you're referring to but I did not understand that portion of the record to have constituted a representation that he would come back in 2001 but rather that he was already signed up through 2001 without any representation that I could see in the record. You can correct me if I'm wrong in this that he indeed was coming back after that commitment terminated. Is there something in the record to that effect? It's the petitioner's position that even if that is not reflected unambiguously in the record. Well, is it or not? It appears that he indicated that he would be on military duty until his military orders expired and there's nothing in the record that says I'm going to come back on October 15th. Okay, I didn't think so far. But isn't it even beyond that? Didn't he tell the human resources person that you like military service better? He was going to voluntarily re-enlist again. He indicated to the human resources official that he appreciated the way the military treated him better than the postal service who was contacting him while on military service and telling him to make a decision to come back while he was being ordered on active military duty or lose his job. So to the extent that he had to unambiguously indicate a date certain that he had to return for military service to be protected by you Sarah, the petitioner would vehemently oppose that view because you Sarah indicates and there's also ample caseloads to indicate that it's very difficult for a reservist to waive their you Sarah rights, which arguably don't even invest until the return for military service. But shouldn't there be some indication that he intends to return? You say unambiguously because we even have to give some ambiguous intentions that he wants to return because I don't see that in the record. At a 47 he indicated he intended to stay at I'm sorry the appendix brief, excuse me the respondents appendix indicates that the decision that the human resources official made to propose Mr. Erickson's removal or recommended. Reflects that yes he was on military service and yes he intended to be on military service until his order expired and then after being informed that he had to make a decision Mr. Erickson indicated that he would have to cancel with an attorney that he disagreed that you Sarah, he stated incorrectly that you Sarah provides exemptions unless he is continuously on active military duty rather than in aggregate basically he was misstated or was under the assumption that he was not going to be able to return for military service. He had to be gone for five years and not in totality but consecutively. So what impact should his voluntarily reimbursed and have on the court's decision? Very little. Essentially Mr

. Erickson has indicated that he had an attention to remain employed with the military his service with the military was on a part-time basis. It was unlike Woodman who was on active military duty for 14 years full-time continuously that is not the case with Mr. Erickson. It may have been part-time but he still I think he worked two days during an almost five year period at the post office. And largely that time was exempt exempted from the five year cap. And I see it on my rubble time. Well we've asked you a lot of questions and we will reserve your full rubble time but let me ask you to add up further questioning if I could. Does in your view if and again I'm troubled by the relationship between 4311 and 4312 so that's what this question is directed at. In your view if someone there is a limited period of time in which someone can request re-employment and 90 days except if there's injury or did the person who's hospitalized or whatever. If you have someone who has a viable claim of discrimination under 4311 but does not request re-employment during the period of the 90 day period I take it you would say that they don't waive their discrimination claim. That's correct Mr. Erickson had two claims one is for an improper removal and two is for a failure to re-employ so that the two 4311 and 4312 could be separated in that manner. But in that saying that there is an automatic re-employment right? Mr. Erickson is required to meet the requirements of you Sarah when requesting re-employment so he has to meet those prongs one of which is a statutory cap of not being denied to military duty and access of five years of timely requesting re-employment ponds return which if it exceeds 180 days would require an application within 90 days. What is the difference in the remedy that would be available if we find for example there's a 4311 violation but not a 4312 violation. 4311 violation would essentially if this court were inclined to find a violation Mr. Erickson would step back into the position he would have been but for the agency's violation of 4311. And get back pay all the way up to today? No I think it would be cut off at the time of his removal because even if he's not entitled to back pay he was still harmed by the postal services violation

. They classified his absence as misconduct and you Sarah was expressly enacted for the sole purpose of preventing that type of situation. So Mr. Erickson has been harmed by virtue of their classification of his absence while covered under the act as misconduct and now has to reported to all future employers and is precluded virtually unambiguously from getting future federal employment. Let me make sure I understand because I'm a little confused now about your answer to the remedy question. I think you said that he would get relief up to the time of his removal in 2000. This court can find a violation in 2000. Right. Would not necessarily indicate he's entitled to back pay but still find that the postal service should not have classified his should not have actually removed him. So the court could order for example that the SF50 be adjusted. Okay and if the SF50 were adjusted but your position still is that he should not have been told at that point no matter how nice the length of the court is. The language of the SF50 might be adjusted to. Absolutely. He should not have been told you can't come back so he would have presumably been able to come back at any point thereafter. He would have been able to come back at some point and the difficulty Mr. Erickson's position is that he remain an active military duty until 2005 because he simply did not have a position to come back to. He was already on active military duty who is obtaining a paycheck from the military so he continued to get that paycheck. He didn't come back early to occupy status of unemployment. So but for the agency's termination of him he made very well of me the timely application after he returned from military service

. So that sounds like you're saying that he's prejudiced all the way through at least 2005 and perhaps beyond by the termination in 2000. Yes. And therefore I would think you would be arguing that he's entitled to back pay throughout that period would you not? Yes he would. He would. And up until when today? Up until today. He would be entitled back pay. What do you have a right to be reinstated in the original position under Yusura or is that required the post office to maintain that position available for the government? The person that's covered by Yusura. Not that they have to be. 4311. 4311 requires re-employment. What they do with the position in the interim is they can they don't have to hold it open. They have to re-employ him. So he would be entitled to the same position. Into the same position. No not into the same position. He would step back onto the seniority escalator that he would have had but for his military service. So he does not step back into the same position. He occupied prior to the time of his removal or his departure from military service

. He would step back onto the career escalator principle as articulated by the Supreme Court and fish gold in the same level that he would have occupied but for his military furlough. Thank you. We'll reserve you for a little time. And see you soon. Thank you, Your Honor. Good morning, Your Honours. May it please the court. The judgment of the MSPV should be affirmed. The factual finding that Mr. Erickson abandoned the civilian career. And the favor of a military one is supported by substantial evidence. Is your lead argument and your brief and you've led with it here? But what indicates to you, if anything, that the full board embraced that rationale, which was the rationale as I read the initial decision, but does not seem to appear in the full board's opinion? The full board affirmed the decision of the administrative judge as modified by the order. And this court has said before, for example, in Barnes vs. Office of Personnel Management, which we cited to in our brief, that unless there's a different factual finding made by the full board that would conflict with the factual finding made by the administrative judge, those factual findings, finding stands. We believe that the decision... I think that's a matter of law in all cases in which the board reviews an ID

. Well, certainly here there's nothing to indicate that the full board disagreed with the administrative judge's conclusion that Mr. Erickson abandoned his civilian career. Well, I notice in the first paragraph of the full board's opinion, the full board says, for the reasons set forth below, which, and then goes on to say, we deny the petition for a view grant that agencies' respitation and affirm as modified. But the reasons set forth below do not include the abandonment rationale. Or do you think that they do? We think that the factual findings that were made by the... First of all, of course, this court may affirm that board's decision on any legal basis along as the fact that it's made by the... Do you think the Chenery... The Chenery Doctrine doesn't apply here? No, in this court has said it and killed up that as long as no new factual findings need to be made, this court may affirm the decision on any basis. So we certainly believe that both the administrative judge's decision on abandonment, which was not affirmatively disposed of by the full board, the full board, at least did not explicitly disagree with that legal conclusion or the factual findings. But you say that as long as no new factual findings need to be made, but that doesn't that assume that the full board has adopted the factual findings because if it's the case that the full board's opinion simply washes the ID out, then the full board hasn't made factual findings necessary in pertinent as it to the abandonment argument. Right, I think the fact that the full board said that they're affirming the decision, they're not making different factual findings which are conflicting with the administrative judges' factual findings. Right, but there's a middle ground, which is that they may simply not be adopting the factual findings of the initial decision

. And that's true, then, unless it's correct that all factual findings not disclaimed or thereby adopted, then we don't have factual findings before us for a review from the full board, right? If that were the law, we believe that what the court said in Barnes that, and it's on page 10 of our brief, that the full board adopts the initial decision, it also adopts the factual findings, unless there's some conflicting. If it adopts the initial decision, what if it amended? Well, that's what happened. By affirming the decision as modified, it adopted the full administrative judges' factual findings. But we're certainly happy to present the court with further explanation on that, but that's a concern to the court. I'm sorry, but the Barnes case is the only one I can cite to you right now that would address that particular. Well, in fact, the ID was amended by the board, and it amended it right on some of the factual determinations and did not accept them. Can we reinstate the ID's factual determination? No, if the full board made factual findings that were conflicting with and not consistent with the administrative judges' factual findings, then this court would be subject to follow the full board's factual findings. Because it's the board's determination, which is before us, not the ID. Correct. So we can't reinstate the ID over the full board's determination of adopting some and rejecting some of the others? Well, this court can certainly affirm the legal conclusion that it was reached that these facts support finding of the abandonment. This court certainly not precluded from finding it. There's nothing in the full board's decision, which conflicts with a finding of abandonment. The full board simply said we disagreed to the extent that this would be a primate case of discrimination. We think that the agency had a non-discriminatory purpose in separating Mr. Erickson because it needed this position to be filled. And that basically the full board followed more traditional shahan burden shifting analysis and the administrative judge used, went about it in a different way. I looked at it in terms of, no, he's not covered by you, Sarah, at all, because he's abandoned his civilian career. There's nothing inconsistent with both of those standing together. Well, the court board's decision seems to imply that they relied more on the failure to request timely reinstatement than any other action it would be required. Well, the administrative judge didn't address the reinployment issue at all, arguably because if he abandoned his career, he didn't have any reinployment rights. So, in fact, that was one of the reasons why the Postal Service Cross Petition for Review was to get a ruling on that reinployment issue, which the administrative judge did not explicitly address. So, the full board did address, and we certainly would support and are asking this court to affirm the full board on the reinployment issue because we believe that is a correct conclusion that was not addressed by the administrative judge. But to the extent that we're talking about the 4,311, the 2000 separation, we believe that that could be supported by the administrative judges' conclusions. But it's not the same fact, is it? Well, I guess maybe the same facts of abandonment certainly could support both conclusions. The reemployment has certainly also supported that decision, and certainly also supported by the fact that he never asked to be reemployed within 90 days, and also arguably by 2005 he had exceeded the five-year limit on reemployment rights. And those are certainly two positions, we think, are very strong, and would support an affirmance on the reemployment issue. Well, there are allegations and a record to the effect that there was a 90-day request as required by the CERA for reemployment in 2005. And in on page A17 and the full board's decision, the board said that Mr. Erickson admitted that he did not request reemployment within the age of 20. And the claim in completion of his four monetary duties? Yes, and to the extent that there were allegations that he requested reemployment or made inquiries regarding reemployment prior to that day, the agency submitted five affidavits of various human resources personnel who all test, who all have heard that they had never received any inquiry from him, and as a factual finding that is supported by the CERA, the full board's conclusion that he did not make a request for reemployment is supported. What about his argument that his counsel made a formal request for reemployment? Well, first of all, that was well outside the 90 days. If we're asking that, and second, we believe that an appeal to the MSPB, alleging that the Postal Service to fail to reemploy him does not constitute an application for reemployment. It's simply not the same thing. I am, I have to confess, troubled by the discrimination rationale applied by the board. As I understand the board said, well, this wasn't discrimination because of military service or discrimination because somebody left for military service. This is discrimination based on absence

. Well, the court board's decision seems to imply that they relied more on the failure to request timely reinstatement than any other action it would be required. Well, the administrative judge didn't address the reinployment issue at all, arguably because if he abandoned his career, he didn't have any reinployment rights. So, in fact, that was one of the reasons why the Postal Service Cross Petition for Review was to get a ruling on that reinployment issue, which the administrative judge did not explicitly address. So, the full board did address, and we certainly would support and are asking this court to affirm the full board on the reinployment issue because we believe that is a correct conclusion that was not addressed by the administrative judge. But to the extent that we're talking about the 4,311, the 2000 separation, we believe that that could be supported by the administrative judges' conclusions. But it's not the same fact, is it? Well, I guess maybe the same facts of abandonment certainly could support both conclusions. The reemployment has certainly also supported that decision, and certainly also supported by the fact that he never asked to be reemployed within 90 days, and also arguably by 2005 he had exceeded the five-year limit on reemployment rights. And those are certainly two positions, we think, are very strong, and would support an affirmance on the reemployment issue. Well, there are allegations and a record to the effect that there was a 90-day request as required by the CERA for reemployment in 2005. And in on page A17 and the full board's decision, the board said that Mr. Erickson admitted that he did not request reemployment within the age of 20. And the claim in completion of his four monetary duties? Yes, and to the extent that there were allegations that he requested reemployment or made inquiries regarding reemployment prior to that day, the agency submitted five affidavits of various human resources personnel who all test, who all have heard that they had never received any inquiry from him, and as a factual finding that is supported by the CERA, the full board's conclusion that he did not make a request for reemployment is supported. What about his argument that his counsel made a formal request for reemployment? Well, first of all, that was well outside the 90 days. If we're asking that, and second, we believe that an appeal to the MSPB, alleging that the Postal Service to fail to reemploy him does not constitute an application for reemployment. It's simply not the same thing. I am, I have to confess, troubled by the discrimination rationale applied by the board. As I understand the board said, well, this wasn't discrimination because of military service or discrimination because somebody left for military service. This is discrimination based on absence. That sounds like verbal legitimacy. I mean, if you were to leave to go join the tennis circuit, leave your job, presumably you'd be fired in pretty short order for not showing up to work. But I thought the whole purpose of the CERA, including the anti-discrimination provision, is to ensure that people can leave. I mean, leaving is exactly what you do to do military service. How can it be the case that it's not discrimination under 43-11, as long as you use their absence as the basis for finding lack of discrimination? It sounds strange. Right. Two points. First, simply because he left on military service. Congress could not have intended that an employer be required to leave a position in comfort and not be able to fill that position with a new employee during the absence. Now, I want to make very, very clear that the employee is absolutely entitled to the re-employment rights under 43-12. Once he makes that application for re-employment, he's absolutely entitled to be re-employed. He gets the position back so that the employer can fill the position, but then they've got to open a new position when he comes back. Right. But what's happening here is, as the Postal Service stated very clearly on page 53, they couldn't fill that position while he would still remain on his roles. So the proposal service under this rationale always used military service absence as a basis and claim that it's non-discriminatory if they remove someone from that. Because essentially what the full board is saying is that removal because of absences for military service is non-discriminatory in an appropriate basis to remove, wouldn't that apply to everyone in military service who's absence for any amount of time? No, you're right. I think we need to limit this to the facts of this particular case where Mr. Erickson had been gone for, already had been gone for three years, had only worked two days there, had not indicated

. That sounds like verbal legitimacy. I mean, if you were to leave to go join the tennis circuit, leave your job, presumably you'd be fired in pretty short order for not showing up to work. But I thought the whole purpose of the CERA, including the anti-discrimination provision, is to ensure that people can leave. I mean, leaving is exactly what you do to do military service. How can it be the case that it's not discrimination under 43-11, as long as you use their absence as the basis for finding lack of discrimination? It sounds strange. Right. Two points. First, simply because he left on military service. Congress could not have intended that an employer be required to leave a position in comfort and not be able to fill that position with a new employee during the absence. Now, I want to make very, very clear that the employee is absolutely entitled to the re-employment rights under 43-12. Once he makes that application for re-employment, he's absolutely entitled to be re-employed. He gets the position back so that the employer can fill the position, but then they've got to open a new position when he comes back. Right. But what's happening here is, as the Postal Service stated very clearly on page 53, they couldn't fill that position while he would still remain on his roles. So the proposal service under this rationale always used military service absence as a basis and claim that it's non-discriminatory if they remove someone from that. Because essentially what the full board is saying is that removal because of absences for military service is non-discriminatory in an appropriate basis to remove, wouldn't that apply to everyone in military service who's absence for any amount of time? No, you're right. I think we need to limit this to the facts of this particular case where Mr. Erickson had been gone for, already had been gone for three years, had only worked two days there, had not indicated. And again, on page 67, there's the affidavit of the human resources official who said that at no time did Mr. Erickson in state that he intended to return to the Postal Service. That's a separate issue than the discrimination. Right. But when we're talking about long extended absences without for sale and whether, very clear, even if Mr. Erickson had resigned, if he had been separated, if he had just been placed in the office, and he didn't leave a absence, all the benefits of employment that he has in nor at the time he seeks re-employment. So even if the removal of the separation 2000 had been incorrect, we think that it's not. But even if this Court were to find that it was incorrect, the only benefit that Mr. Erickson would obtain would be the right of re-employment, which he already had by virtue of 4312. There's no, and to address this Court's concern about the remedy, even if this Court were to find that the separation 2000 was improper, the result would be that he would have been deemed to have been on a leave of absence or a furlough. He still by 4312 would have been required to make an application within 90 days of his leaving military service in 2005, which he did not do. So there's no harm to him. Assuming that he did, let's say that hypothetically, if he had filed a notice within the 30, 90 days in a position was filled, post office would still need to re-employ that particular person. Absolutely. And if the position was no longer in the organization, what happens at that point? Does the individual still have rights of employment, even though the post office has re-organized that position from its structure, from its personal structure? 4312 absolutely gives the absolute right to re-employment. Now, if there is a situation where that facility is closed or if it would be impossible or a hardship for the employer to re-employ him, there may be other situations. But the Postal Service would have been obligated to find him a position within the same seniority and benefits that he would have been entitled to, had he been considered to be on leave that entire time. So if, in fact, the notice was given within 90 days directly or indirectly by his lawyer, then that would apply

. And again, on page 67, there's the affidavit of the human resources official who said that at no time did Mr. Erickson in state that he intended to return to the Postal Service. That's a separate issue than the discrimination. Right. But when we're talking about long extended absences without for sale and whether, very clear, even if Mr. Erickson had resigned, if he had been separated, if he had just been placed in the office, and he didn't leave a absence, all the benefits of employment that he has in nor at the time he seeks re-employment. So even if the removal of the separation 2000 had been incorrect, we think that it's not. But even if this Court were to find that it was incorrect, the only benefit that Mr. Erickson would obtain would be the right of re-employment, which he already had by virtue of 4312. There's no, and to address this Court's concern about the remedy, even if this Court were to find that the separation 2000 was improper, the result would be that he would have been deemed to have been on a leave of absence or a furlough. He still by 4312 would have been required to make an application within 90 days of his leaving military service in 2005, which he did not do. So there's no harm to him. Assuming that he did, let's say that hypothetically, if he had filed a notice within the 30, 90 days in a position was filled, post office would still need to re-employ that particular person. Absolutely. And if the position was no longer in the organization, what happens at that point? Does the individual still have rights of employment, even though the post office has re-organized that position from its structure, from its personal structure? 4312 absolutely gives the absolute right to re-employment. Now, if there is a situation where that facility is closed or if it would be impossible or a hardship for the employer to re-employ him, there may be other situations. But the Postal Service would have been obligated to find him a position within the same seniority and benefits that he would have been entitled to, had he been considered to be on leave that entire time. So if, in fact, the notice was given within 90 days directly or indirectly by his lawyer, then that would apply. Assuming that the application met, you know, was to somebody in the Postal Service. And that was the case, the case that the person who had the ability to do something about it, like a human resource is official or a supervisor, somebody like that. If there had been an application made within 90 days. What was done by Mr. Erickson or his lawyer? I'm not sure that the difference would have been made. I think the only application we have here by his lawyer was by making an appeal to the MSPB, never to the Postal Service itself. Was there any evidence that the union took any action for re-employment on behalf of Mr. Erickson? It does not appear that the union ever filed agreements regarding the removal now. Let me ask you, returning to the discrimination point, and you moved quickly to the facts of this case and the period of time and so forth. But I want to focus in on the rationale employed by the board and see the extent to which you embrace that rationale as applied more generally. Because as I read the board, it's a pretty broad ruling that removal for absence is not discrimination because of military service. Does the Department of Justice stand behind that proposition as stated? That would be extraordinarily broad, Your Honor. I don't think you would be. You don't think that's exactly what the board has said? No, the board has said that an absence and extended absence without, for prolonged absence without foreseeable end. And then the board pointed the fact that he had been continuously absent for three years and he had importantly had expressed at that time inclination not to return to civilian position in the foreseeable future. It would be an entirely different thing if an employee were on military service and maybe was away for years but had expressed their intention to return. But again, that wouldn't mean necessarily that the employer is required to maintain them in a certain employment status. Well, I don't think that doesn't really matter

. Assuming that the application met, you know, was to somebody in the Postal Service. And that was the case, the case that the person who had the ability to do something about it, like a human resource is official or a supervisor, somebody like that. If there had been an application made within 90 days. What was done by Mr. Erickson or his lawyer? I'm not sure that the difference would have been made. I think the only application we have here by his lawyer was by making an appeal to the MSPB, never to the Postal Service itself. Was there any evidence that the union took any action for re-employment on behalf of Mr. Erickson? It does not appear that the union ever filed agreements regarding the removal now. Let me ask you, returning to the discrimination point, and you moved quickly to the facts of this case and the period of time and so forth. But I want to focus in on the rationale employed by the board and see the extent to which you embrace that rationale as applied more generally. Because as I read the board, it's a pretty broad ruling that removal for absence is not discrimination because of military service. Does the Department of Justice stand behind that proposition as stated? That would be extraordinarily broad, Your Honor. I don't think you would be. You don't think that's exactly what the board has said? No, the board has said that an absence and extended absence without, for prolonged absence without foreseeable end. And then the board pointed the fact that he had been continuously absent for three years and he had importantly had expressed at that time inclination not to return to civilian position in the foreseeable future. It would be an entirely different thing if an employee were on military service and maybe was away for years but had expressed their intention to return. But again, that wouldn't mean necessarily that the employer is required to maintain them in a certain employment status. Well, I don't think that doesn't really matter. What the employer decides to do about whether the technically they refer to the jobs being filled that subject to being reopened or whether it remains technically open, as long as the job is available to the service minimum you return. Absolutely. And then we stand by that. All right, all right. But here's the language that troubled me from the boards opinion and I'm reading from page four of the full board's opinion. The agency's removal notice makes clear that the real reason for the appellance removal was its absence regardless of its cause. And they say that is not discrimination as long as it's the absence, not the military nexus. But you don't think that's correct. I think that this is a very fine line to walk your honor and I agree that that's a difficult position to take. I think this to be a- But I'm asking you, do you take it? I don't think I- I'm speaking for the Department of Justice and for- Right. I guess in this case the postal service. I don't think we could we could say as a blanket rule that absence would always be a permissible non-discriminatory reason. But again, these discrimination cases are always contingent on the facts of the particular case. Right. It helps to have to start with a legal theory that will stand up and then you apply the facts through the legal theory. I'm just questioning whether this legal theory articulated by the board is a fundamentally flawed legal theory of military discrimination. And here's my concern. If this is a correct proposition that it seems to me we've reduced 4311 to cases in which the agency says, you know what? We can't stand those military guys

. What the employer decides to do about whether the technically they refer to the jobs being filled that subject to being reopened or whether it remains technically open, as long as the job is available to the service minimum you return. Absolutely. And then we stand by that. All right, all right. But here's the language that troubled me from the boards opinion and I'm reading from page four of the full board's opinion. The agency's removal notice makes clear that the real reason for the appellance removal was its absence regardless of its cause. And they say that is not discrimination as long as it's the absence, not the military nexus. But you don't think that's correct. I think that this is a very fine line to walk your honor and I agree that that's a difficult position to take. I think this to be a- But I'm asking you, do you take it? I don't think I- I'm speaking for the Department of Justice and for- Right. I guess in this case the postal service. I don't think we could we could say as a blanket rule that absence would always be a permissible non-discriminatory reason. But again, these discrimination cases are always contingent on the facts of the particular case. Right. It helps to have to start with a legal theory that will stand up and then you apply the facts through the legal theory. I'm just questioning whether this legal theory articulated by the board is a fundamentally flawed legal theory of military discrimination. And here's my concern. If this is a correct proposition that it seems to me we've reduced 4311 to cases in which the agency says, you know what? We can't stand those military guys. They're just people coming back from the military are anathema. Anybody that comes back from the military whether they're going a week or whether they're going five years away, find a way to get rid of them. That's clearly not all that Congress had in mind with 4311. No, I mean 4311 extends a large number of actions that employers including not giving people rights when they come back from the service. 4312 says you have a right to reemployment and we stand by that again whether or not the removal was not for the right reason in 2000. The benefits that a New Yorker to Mr. Erickson whether or not he was on leave whether or not he resigned whether or not he separated his benefits come when he returns and applies for reemployment. And he dropped the ball. Yes. And I do want to point out that Mr. and we did make this point in our brief that Mr. Erickson still has the right to request reemployment with the postal service. If he just doesn't have the automatic reemployment rights that 4312 provides he would still be required to go through the same reemployment procedures that any former employee would. But he certainly to this day would be permitted to request reemployment and the allegations that in his brief. Correct. His right is no greater than yours in mind. Well, as a former employee he has the same rights as any other former employee and he would be subject to the rules. I presume his military service would also give him some kind of an advantage at that point

. They're just people coming back from the military are anathema. Anybody that comes back from the military whether they're going a week or whether they're going five years away, find a way to get rid of them. That's clearly not all that Congress had in mind with 4311. No, I mean 4311 extends a large number of actions that employers including not giving people rights when they come back from the service. 4312 says you have a right to reemployment and we stand by that again whether or not the removal was not for the right reason in 2000. The benefits that a New Yorker to Mr. Erickson whether or not he was on leave whether or not he resigned whether or not he separated his benefits come when he returns and applies for reemployment. And he dropped the ball. Yes. And I do want to point out that Mr. and we did make this point in our brief that Mr. Erickson still has the right to request reemployment with the postal service. If he just doesn't have the automatic reemployment rights that 4312 provides he would still be required to go through the same reemployment procedures that any former employee would. But he certainly to this day would be permitted to request reemployment and the allegations that in his brief. Correct. His right is no greater than yours in mind. Well, as a former employee he has the same rights as any other former employee and he would be subject to the rules. I presume his military service would also give him some kind of an advantage at that point. Right. He would be subject to the responsibility. Yes, Your Honor. That would not be taken away from no absolutely. Okay. Thank you. Thank you, Your Honor. Thank you. May I please the court just to as a matter of clarification with regard to 4311 and 4312. Again, it's the petitioners assertion that 4311 was violated by virtue of his removal. The possible remedy for that is not necessarily monetary. It's not necessarily back pay. It could be in terms of pension credits. It could be in terms of seniority. The issue of 4312 with regard to reemployment, it's the petitioners assertion that that aspect of the record is somewhat ambiguous and it would be the petitioners recommendation to remain the case for further development on the record. For example, the respondents brief at appendix A104 and A105 seemed to indicate that Mr. Erickson did indeed submit agreements that he did indeed complain about the fact that he was removed from employment and it was not at all clear to him that he had reemployment rights after he had been terminated in 2000. Mr

. Right. He would be subject to the responsibility. Yes, Your Honor. That would not be taken away from no absolutely. Okay. Thank you. Thank you, Your Honor. Thank you. May I please the court just to as a matter of clarification with regard to 4311 and 4312. Again, it's the petitioners assertion that 4311 was violated by virtue of his removal. The possible remedy for that is not necessarily monetary. It's not necessarily back pay. It could be in terms of pension credits. It could be in terms of seniority. The issue of 4312 with regard to reemployment, it's the petitioners assertion that that aspect of the record is somewhat ambiguous and it would be the petitioners recommendation to remain the case for further development on the record. For example, the respondents brief at appendix A104 and A105 seemed to indicate that Mr. Erickson did indeed submit agreements that he did indeed complain about the fact that he was removed from employment and it was not at all clear to him that he had reemployment rights after he had been terminated in 2000. Mr. Erickson has been awarded the Purt Heart, the bronze star. He has come back after being removed from employment and has attempted very diligently to obtain his position back in the Postal Service. He is exactly the type of petitioner that Congress envisioned when enacting you Sarah. Any fine points with regard to the time calculations cannot possibly obviate the fact that he was discriminated against in 2000 because he was removed by virtue of his military service, not absence because absence is necessitated by the military service. So the full board's decision is unambiguously incorrect. This court can vacate the board's decision with respect to the removal and the petitioner request of remand on the issue of the re-instatement. What is your position with respect to the issue that Hogan was discussing with us as to whether the full board's opinion should be read as incorporating the initial decision rationale regarding abandonment? The full board amended and modified the initial decision. Correct. It was affirmed and modified. It wasn't at all clear whether or not or how they were necessarily interpreting the initial decision, how they were planning it. It appeared that they were mixing the two claims, the 4311 and the 4312 claims. For that reason, the full board decision reads in a manner that would create precedent that permits agencies to remove appellants by virtue of their absence. And by virtue of their absence for military service, it would create the type of precedent that would prohibit any civilian employee who leaves from the military and comes back who was terminated from appealing to that MSPB for reinstating the claim. I can certainly understand your argument that that's problematic. But as Hogan's argument that she began with both in her brief and here was abandoned. Now, the question that I have is whether that abandonment issue is before us in the sense that the full board embraced not only the rationale that it expressed, but also the rationale that it's present in the initial decision by the administrator. The petitioner would argue that the MSPB did not embrace the abandonment issue with respect to the actual re-employment. It was an entitled re-employment by virtue of the fact that he remained on military service for an extended period of time and therefore was not covered by you Sarah

. Erickson has been awarded the Purt Heart, the bronze star. He has come back after being removed from employment and has attempted very diligently to obtain his position back in the Postal Service. He is exactly the type of petitioner that Congress envisioned when enacting you Sarah. Any fine points with regard to the time calculations cannot possibly obviate the fact that he was discriminated against in 2000 because he was removed by virtue of his military service, not absence because absence is necessitated by the military service. So the full board's decision is unambiguously incorrect. This court can vacate the board's decision with respect to the removal and the petitioner request of remand on the issue of the re-instatement. What is your position with respect to the issue that Hogan was discussing with us as to whether the full board's opinion should be read as incorporating the initial decision rationale regarding abandonment? The full board amended and modified the initial decision. Correct. It was affirmed and modified. It wasn't at all clear whether or not or how they were necessarily interpreting the initial decision, how they were planning it. It appeared that they were mixing the two claims, the 4311 and the 4312 claims. For that reason, the full board decision reads in a manner that would create precedent that permits agencies to remove appellants by virtue of their absence. And by virtue of their absence for military service, it would create the type of precedent that would prohibit any civilian employee who leaves from the military and comes back who was terminated from appealing to that MSPB for reinstating the claim. I can certainly understand your argument that that's problematic. But as Hogan's argument that she began with both in her brief and here was abandoned. Now, the question that I have is whether that abandonment issue is before us in the sense that the full board embraced not only the rationale that it expressed, but also the rationale that it's present in the initial decision by the administrator. The petitioner would argue that the MSPB did not embrace the abandonment issue with respect to the actual re-employment. It was an entitled re-employment by virtue of the fact that he remained on military service for an extended period of time and therefore was not covered by you Sarah. It was not clear from the full board's decision whether or not that same reasoning applied to the 4311 claim. So the petitioner would simply conclude by reiterating that this court can vacate the MSPB's decision by virtue of the fact that Mr. Erickson successfully established his unmilitary leave. He was a civilian employee that while he was unmilitary leave, he was denied a benefit employment when he was terminated from the full board's service and also denied re-employment rights. Thank you. Thank you very much. And both counsel. Can you just submit it?

for the benefit of the Salomon of you and other Council today, the lighting system will show green until you begin to get into your rebuttal time at which point it will turn yellow. You will reserve five minutes for rebuttal ugly and then when you've exhausted your full time it will turn red. May I please support my name is Ariel Salomon. I represent the petitioner Mr. Richard Ererson and his appeal from the MSPB decision which erroneously affirm the postal service decision to remove him from employment while he was still serving on military duty. This is really a very simple case. Mr. Ererson was employed with the postal service. He left, served on active military duty during that time period. He was contacted by the postal service and told to make a decision about whether or not he intended to return. In order to successfully establish a use of Sarah Violation Mr. Ererson has alleged three factors. The first is that of military service which he unambiguously does. The second is that he was denied a benefit of employment which he also unambiguously does. Essentially he was removed from employment and thereby he was not committed the protections engendered by 38 USC 4311 which provides for the retention of employment for an individual covered by you Sarah and serving on active military duty. Mr. Ererson completed his military service on December 31st of 2005 and he had 90 days to reapply from that time for the position. What evidence was submitted below that he actually did reapply during that period? Mr. Ererson indicated that he had contacted the agency and he had been in contact with his union to try and seek re-employment but the issue in this case is really twofold. The first is that what evidence was there that he actually contacted the agency? Did he submit any evidence of a call of memo communication and email communication? As indicated in the administrative judges initial decision he stayed candidly in a deposition that he had contacted the agency so Violet Deposition which was introduced into record at the board level Mr. Ererson requested re-employment. Did that testimony make clear that when he contacted the agency he did request re-employment? The deposition made clear that only that he had contacted and expressed a concern that he was removed from employment and didn't think it was justified because he was covered under you Sarah. Did it go beyond that and they asked to actually be re-employed? It was the petitioner's position that he didn't have a position to be re-employed too. He was terminated in 2000. Therefore it seemed as though it would have been for not to request re-employment. He did complain that he was actually removed from service while he was protected from the uniform services and the agency maintained that he had been properly removed by virtue of exceeding the five year statutory cap. Mr. Ererson's position that at the time the removal he was still covered under you Sarah and he submitted various orders and evidence at the board level which indicated that he fell within the exemptions of 43-12 which enumerates roughly seven exemptions and a significant portion of his time was covered under those exemptions under the cap. Moreover, the time period that he served on military duty after he was removed was improperly considered when the board determined whether or not the agency had violated you Sarah by virtue of the fact that he simply remained on military duty to mitigate the damages that he had incurred after the postal service terminated in his employment. I think the record reflects that he served a total of 23 years in the military. Is that right? In total that's correct. Was he retired out of the military? That's correct. That happened in 2005. Correct. What is your view as to the application of the five year limit which I think appears in 43-12 with respect to 43-11 and let me explain what I mean by that. Do you believe that if someone is gone for five years that 43-11 I understand that that's not the case in this instance at least as of 2000 but if someone were gone for five years would 43-11 not apply to them? If someone, your honor's question is contingent on other factors I would think. For example if someone does not intend to return to civilian employment then for all intents and purposes 43-11 would not cover that individual. Let's take someone who doesn't make clear whether they do intend or not but they simply depart for let's say six years and let's set aside any exceptions to the period. They're gone for six years. They wouldn't have re-employment rights I take it under 43-12 correct? If there are no exemptions that's correct. Okay now do they nonetheless have rights under 43-11? It wasn't clear to me from your brief whether you were making an argument that 43-11 would apply even if 43-12 did not. If 43-11 would apply even if 43-12 would not because if the individual for example Mr. Erickson was removed from employment prior to the expiration of the six years there was a time period that he was still covered by you Sarah and could have for seeably requested his position. Wait wait wait wait you've lost me there. My hypothetical is and I'm not talking about Mr. Erickson's case now but just a hypothetical is that the individual is gone for long enough five years not counting exceptions. He's gone for long enough that he wouldn't have re-employment rights under 43-12 okay? Does he nonetheless have anti-discrimination rights under 43-11 or does 43-11 right anti-discrimination rights are they coterminous with the 43-12 re-employment rights in time? 43-11 is contingent on 43-12 by virtue of the fact that you Sarah only applies to non-career military employees. So if someone exceeds the five year cap and arguably they're not covered under you Sarah by virtue of the fact that they're not deemed to be a civilian employee they haven't complied with the act. However in the case and I realize that you're hypotenetic. I think you've answered my question. With the case of Mr. Erickson though regardless of the exceptions well he was inclusive 43-12 in the exceptions he was covered by you Sarah at the time of his removal. The agency submitted a bio letter to him indicating that he had exceeded the five year cap and he did and they did that erroneously. So after being informed he was terminated from employment he remained on military service. He did that to mitigate his damages. So there was no position for him to ever reapply to that doesn't obviate the fact that the postal service still violated 43-11 while Mr. Erickson was still covered by the act. And he was harmed by that. He has been prevented from obtaining alternative employment with other federal agencies by virtue of the prior termination as reflected on his F-50. He has been precluded from readily obtaining alternative employment positions in the private sector. So the simple act of removing him while he was covered by you Sarah has caused significant harm to him. So whether or not he was entitled to later re-employment does not prevent this court from finding that the postal service violated you Sarah in the first instance in 2000 when they fired him and he was covered by the act. And what year was that violated your allegation as 2005 or 2001? In 2000. Correct. The agency proposed his removal in February 16th of 2000. It was effectuated on April 7th 2000. And during that time period he hadn't exceeded the cap moreover. This isn't a situation like this court found in Woodman, V-O-P-M. This is a situation where they knew when Mr. Erickson was going to be returning because he had had a conversation with a human resource as official as reflected in the response brief and in the response appendix. And they were able to identify when his orders expired which were in September of 2001. He indicated in intention of staying on military duty until that order expired. So this isn't a case where as in Woodman Mr. Erickson was on military service for an extended period of time and they just were not aware of if or when he would ever return. Well now, please go ahead. The record, and I know the portion of the record you're referring to but I did not understand that portion of the record to have constituted a representation that he would come back in 2001 but rather that he was already signed up through 2001 without any representation that I could see in the record. You can correct me if I'm wrong in this that he indeed was coming back after that commitment terminated. Is there something in the record to that effect? It's the petitioner's position that even if that is not reflected unambiguously in the record. Well, is it or not? It appears that he indicated that he would be on military duty until his military orders expired and there's nothing in the record that says I'm going to come back on October 15th. Okay, I didn't think so far. But isn't it even beyond that? Didn't he tell the human resources person that you like military service better? He was going to voluntarily re-enlist again. He indicated to the human resources official that he appreciated the way the military treated him better than the postal service who was contacting him while on military service and telling him to make a decision to come back while he was being ordered on active military duty or lose his job. So to the extent that he had to unambiguously indicate a date certain that he had to return for military service to be protected by you Sarah, the petitioner would vehemently oppose that view because you Sarah indicates and there's also ample caseloads to indicate that it's very difficult for a reservist to waive their you Sarah rights, which arguably don't even invest until the return for military service. But shouldn't there be some indication that he intends to return? You say unambiguously because we even have to give some ambiguous intentions that he wants to return because I don't see that in the record. At a 47 he indicated he intended to stay at I'm sorry the appendix brief, excuse me the respondents appendix indicates that the decision that the human resources official made to propose Mr. Erickson's removal or recommended. Reflects that yes he was on military service and yes he intended to be on military service until his order expired and then after being informed that he had to make a decision Mr. Erickson indicated that he would have to cancel with an attorney that he disagreed that you Sarah, he stated incorrectly that you Sarah provides exemptions unless he is continuously on active military duty rather than in aggregate basically he was misstated or was under the assumption that he was not going to be able to return for military service. He had to be gone for five years and not in totality but consecutively. So what impact should his voluntarily reimbursed and have on the court's decision? Very little. Essentially Mr. Erickson has indicated that he had an attention to remain employed with the military his service with the military was on a part-time basis. It was unlike Woodman who was on active military duty for 14 years full-time continuously that is not the case with Mr. Erickson. It may have been part-time but he still I think he worked two days during an almost five year period at the post office. And largely that time was exempt exempted from the five year cap. And I see it on my rubble time. Well we've asked you a lot of questions and we will reserve your full rubble time but let me ask you to add up further questioning if I could. Does in your view if and again I'm troubled by the relationship between 4311 and 4312 so that's what this question is directed at. In your view if someone there is a limited period of time in which someone can request re-employment and 90 days except if there's injury or did the person who's hospitalized or whatever. If you have someone who has a viable claim of discrimination under 4311 but does not request re-employment during the period of the 90 day period I take it you would say that they don't waive their discrimination claim. That's correct Mr. Erickson had two claims one is for an improper removal and two is for a failure to re-employ so that the two 4311 and 4312 could be separated in that manner. But in that saying that there is an automatic re-employment right? Mr. Erickson is required to meet the requirements of you Sarah when requesting re-employment so he has to meet those prongs one of which is a statutory cap of not being denied to military duty and access of five years of timely requesting re-employment ponds return which if it exceeds 180 days would require an application within 90 days. What is the difference in the remedy that would be available if we find for example there's a 4311 violation but not a 4312 violation. 4311 violation would essentially if this court were inclined to find a violation Mr. Erickson would step back into the position he would have been but for the agency's violation of 4311. And get back pay all the way up to today? No I think it would be cut off at the time of his removal because even if he's not entitled to back pay he was still harmed by the postal services violation. They classified his absence as misconduct and you Sarah was expressly enacted for the sole purpose of preventing that type of situation. So Mr. Erickson has been harmed by virtue of their classification of his absence while covered under the act as misconduct and now has to reported to all future employers and is precluded virtually unambiguously from getting future federal employment. Let me make sure I understand because I'm a little confused now about your answer to the remedy question. I think you said that he would get relief up to the time of his removal in 2000. This court can find a violation in 2000. Right. Would not necessarily indicate he's entitled to back pay but still find that the postal service should not have classified his should not have actually removed him. So the court could order for example that the SF50 be adjusted. Okay and if the SF50 were adjusted but your position still is that he should not have been told at that point no matter how nice the length of the court is. The language of the SF50 might be adjusted to. Absolutely. He should not have been told you can't come back so he would have presumably been able to come back at any point thereafter. He would have been able to come back at some point and the difficulty Mr. Erickson's position is that he remain an active military duty until 2005 because he simply did not have a position to come back to. He was already on active military duty who is obtaining a paycheck from the military so he continued to get that paycheck. He didn't come back early to occupy status of unemployment. So but for the agency's termination of him he made very well of me the timely application after he returned from military service. So that sounds like you're saying that he's prejudiced all the way through at least 2005 and perhaps beyond by the termination in 2000. Yes. And therefore I would think you would be arguing that he's entitled to back pay throughout that period would you not? Yes he would. He would. And up until when today? Up until today. He would be entitled back pay. What do you have a right to be reinstated in the original position under Yusura or is that required the post office to maintain that position available for the government? The person that's covered by Yusura. Not that they have to be. 4311. 4311 requires re-employment. What they do with the position in the interim is they can they don't have to hold it open. They have to re-employ him. So he would be entitled to the same position. Into the same position. No not into the same position. He would step back onto the seniority escalator that he would have had but for his military service. So he does not step back into the same position. He occupied prior to the time of his removal or his departure from military service. He would step back onto the career escalator principle as articulated by the Supreme Court and fish gold in the same level that he would have occupied but for his military furlough. Thank you. We'll reserve you for a little time. And see you soon. Thank you, Your Honor. Good morning, Your Honours. May it please the court. The judgment of the MSPV should be affirmed. The factual finding that Mr. Erickson abandoned the civilian career. And the favor of a military one is supported by substantial evidence. Is your lead argument and your brief and you've led with it here? But what indicates to you, if anything, that the full board embraced that rationale, which was the rationale as I read the initial decision, but does not seem to appear in the full board's opinion? The full board affirmed the decision of the administrative judge as modified by the order. And this court has said before, for example, in Barnes vs. Office of Personnel Management, which we cited to in our brief, that unless there's a different factual finding made by the full board that would conflict with the factual finding made by the administrative judge, those factual findings, finding stands. We believe that the decision... I think that's a matter of law in all cases in which the board reviews an ID. Well, certainly here there's nothing to indicate that the full board disagreed with the administrative judge's conclusion that Mr. Erickson abandoned his civilian career. Well, I notice in the first paragraph of the full board's opinion, the full board says, for the reasons set forth below, which, and then goes on to say, we deny the petition for a view grant that agencies' respitation and affirm as modified. But the reasons set forth below do not include the abandonment rationale. Or do you think that they do? We think that the factual findings that were made by the... First of all, of course, this court may affirm that board's decision on any legal basis along as the fact that it's made by the... Do you think the Chenery... The Chenery Doctrine doesn't apply here? No, in this court has said it and killed up that as long as no new factual findings need to be made, this court may affirm the decision on any basis. So we certainly believe that both the administrative judge's decision on abandonment, which was not affirmatively disposed of by the full board, the full board, at least did not explicitly disagree with that legal conclusion or the factual findings. But you say that as long as no new factual findings need to be made, but that doesn't that assume that the full board has adopted the factual findings because if it's the case that the full board's opinion simply washes the ID out, then the full board hasn't made factual findings necessary in pertinent as it to the abandonment argument. Right, I think the fact that the full board said that they're affirming the decision, they're not making different factual findings which are conflicting with the administrative judges' factual findings. Right, but there's a middle ground, which is that they may simply not be adopting the factual findings of the initial decision. And that's true, then, unless it's correct that all factual findings not disclaimed or thereby adopted, then we don't have factual findings before us for a review from the full board, right? If that were the law, we believe that what the court said in Barnes that, and it's on page 10 of our brief, that the full board adopts the initial decision, it also adopts the factual findings, unless there's some conflicting. If it adopts the initial decision, what if it amended? Well, that's what happened. By affirming the decision as modified, it adopted the full administrative judges' factual findings. But we're certainly happy to present the court with further explanation on that, but that's a concern to the court. I'm sorry, but the Barnes case is the only one I can cite to you right now that would address that particular. Well, in fact, the ID was amended by the board, and it amended it right on some of the factual determinations and did not accept them. Can we reinstate the ID's factual determination? No, if the full board made factual findings that were conflicting with and not consistent with the administrative judges' factual findings, then this court would be subject to follow the full board's factual findings. Because it's the board's determination, which is before us, not the ID. Correct. So we can't reinstate the ID over the full board's determination of adopting some and rejecting some of the others? Well, this court can certainly affirm the legal conclusion that it was reached that these facts support finding of the abandonment. This court certainly not precluded from finding it. There's nothing in the full board's decision, which conflicts with a finding of abandonment. The full board simply said we disagreed to the extent that this would be a primate case of discrimination. We think that the agency had a non-discriminatory purpose in separating Mr. Erickson because it needed this position to be filled. And that basically the full board followed more traditional shahan burden shifting analysis and the administrative judge used, went about it in a different way. I looked at it in terms of, no, he's not covered by you, Sarah, at all, because he's abandoned his civilian career. There's nothing inconsistent with both of those standing together. Well, the court board's decision seems to imply that they relied more on the failure to request timely reinstatement than any other action it would be required. Well, the administrative judge didn't address the reinployment issue at all, arguably because if he abandoned his career, he didn't have any reinployment rights. So, in fact, that was one of the reasons why the Postal Service Cross Petition for Review was to get a ruling on that reinployment issue, which the administrative judge did not explicitly address. So, the full board did address, and we certainly would support and are asking this court to affirm the full board on the reinployment issue because we believe that is a correct conclusion that was not addressed by the administrative judge. But to the extent that we're talking about the 4,311, the 2000 separation, we believe that that could be supported by the administrative judges' conclusions. But it's not the same fact, is it? Well, I guess maybe the same facts of abandonment certainly could support both conclusions. The reemployment has certainly also supported that decision, and certainly also supported by the fact that he never asked to be reemployed within 90 days, and also arguably by 2005 he had exceeded the five-year limit on reemployment rights. And those are certainly two positions, we think, are very strong, and would support an affirmance on the reemployment issue. Well, there are allegations and a record to the effect that there was a 90-day request as required by the CERA for reemployment in 2005. And in on page A17 and the full board's decision, the board said that Mr. Erickson admitted that he did not request reemployment within the age of 20. And the claim in completion of his four monetary duties? Yes, and to the extent that there were allegations that he requested reemployment or made inquiries regarding reemployment prior to that day, the agency submitted five affidavits of various human resources personnel who all test, who all have heard that they had never received any inquiry from him, and as a factual finding that is supported by the CERA, the full board's conclusion that he did not make a request for reemployment is supported. What about his argument that his counsel made a formal request for reemployment? Well, first of all, that was well outside the 90 days. If we're asking that, and second, we believe that an appeal to the MSPB, alleging that the Postal Service to fail to reemploy him does not constitute an application for reemployment. It's simply not the same thing. I am, I have to confess, troubled by the discrimination rationale applied by the board. As I understand the board said, well, this wasn't discrimination because of military service or discrimination because somebody left for military service. This is discrimination based on absence. That sounds like verbal legitimacy. I mean, if you were to leave to go join the tennis circuit, leave your job, presumably you'd be fired in pretty short order for not showing up to work. But I thought the whole purpose of the CERA, including the anti-discrimination provision, is to ensure that people can leave. I mean, leaving is exactly what you do to do military service. How can it be the case that it's not discrimination under 43-11, as long as you use their absence as the basis for finding lack of discrimination? It sounds strange. Right. Two points. First, simply because he left on military service. Congress could not have intended that an employer be required to leave a position in comfort and not be able to fill that position with a new employee during the absence. Now, I want to make very, very clear that the employee is absolutely entitled to the re-employment rights under 43-12. Once he makes that application for re-employment, he's absolutely entitled to be re-employed. He gets the position back so that the employer can fill the position, but then they've got to open a new position when he comes back. Right. But what's happening here is, as the Postal Service stated very clearly on page 53, they couldn't fill that position while he would still remain on his roles. So the proposal service under this rationale always used military service absence as a basis and claim that it's non-discriminatory if they remove someone from that. Because essentially what the full board is saying is that removal because of absences for military service is non-discriminatory in an appropriate basis to remove, wouldn't that apply to everyone in military service who's absence for any amount of time? No, you're right. I think we need to limit this to the facts of this particular case where Mr. Erickson had been gone for, already had been gone for three years, had only worked two days there, had not indicated. And again, on page 67, there's the affidavit of the human resources official who said that at no time did Mr. Erickson in state that he intended to return to the Postal Service. That's a separate issue than the discrimination. Right. But when we're talking about long extended absences without for sale and whether, very clear, even if Mr. Erickson had resigned, if he had been separated, if he had just been placed in the office, and he didn't leave a absence, all the benefits of employment that he has in nor at the time he seeks re-employment. So even if the removal of the separation 2000 had been incorrect, we think that it's not. But even if this Court were to find that it was incorrect, the only benefit that Mr. Erickson would obtain would be the right of re-employment, which he already had by virtue of 4312. There's no, and to address this Court's concern about the remedy, even if this Court were to find that the separation 2000 was improper, the result would be that he would have been deemed to have been on a leave of absence or a furlough. He still by 4312 would have been required to make an application within 90 days of his leaving military service in 2005, which he did not do. So there's no harm to him. Assuming that he did, let's say that hypothetically, if he had filed a notice within the 30, 90 days in a position was filled, post office would still need to re-employ that particular person. Absolutely. And if the position was no longer in the organization, what happens at that point? Does the individual still have rights of employment, even though the post office has re-organized that position from its structure, from its personal structure? 4312 absolutely gives the absolute right to re-employment. Now, if there is a situation where that facility is closed or if it would be impossible or a hardship for the employer to re-employ him, there may be other situations. But the Postal Service would have been obligated to find him a position within the same seniority and benefits that he would have been entitled to, had he been considered to be on leave that entire time. So if, in fact, the notice was given within 90 days directly or indirectly by his lawyer, then that would apply. Assuming that the application met, you know, was to somebody in the Postal Service. And that was the case, the case that the person who had the ability to do something about it, like a human resource is official or a supervisor, somebody like that. If there had been an application made within 90 days. What was done by Mr. Erickson or his lawyer? I'm not sure that the difference would have been made. I think the only application we have here by his lawyer was by making an appeal to the MSPB, never to the Postal Service itself. Was there any evidence that the union took any action for re-employment on behalf of Mr. Erickson? It does not appear that the union ever filed agreements regarding the removal now. Let me ask you, returning to the discrimination point, and you moved quickly to the facts of this case and the period of time and so forth. But I want to focus in on the rationale employed by the board and see the extent to which you embrace that rationale as applied more generally. Because as I read the board, it's a pretty broad ruling that removal for absence is not discrimination because of military service. Does the Department of Justice stand behind that proposition as stated? That would be extraordinarily broad, Your Honor. I don't think you would be. You don't think that's exactly what the board has said? No, the board has said that an absence and extended absence without, for prolonged absence without foreseeable end. And then the board pointed the fact that he had been continuously absent for three years and he had importantly had expressed at that time inclination not to return to civilian position in the foreseeable future. It would be an entirely different thing if an employee were on military service and maybe was away for years but had expressed their intention to return. But again, that wouldn't mean necessarily that the employer is required to maintain them in a certain employment status. Well, I don't think that doesn't really matter. What the employer decides to do about whether the technically they refer to the jobs being filled that subject to being reopened or whether it remains technically open, as long as the job is available to the service minimum you return. Absolutely. And then we stand by that. All right, all right. But here's the language that troubled me from the boards opinion and I'm reading from page four of the full board's opinion. The agency's removal notice makes clear that the real reason for the appellance removal was its absence regardless of its cause. And they say that is not discrimination as long as it's the absence, not the military nexus. But you don't think that's correct. I think that this is a very fine line to walk your honor and I agree that that's a difficult position to take. I think this to be a- But I'm asking you, do you take it? I don't think I- I'm speaking for the Department of Justice and for- Right. I guess in this case the postal service. I don't think we could we could say as a blanket rule that absence would always be a permissible non-discriminatory reason. But again, these discrimination cases are always contingent on the facts of the particular case. Right. It helps to have to start with a legal theory that will stand up and then you apply the facts through the legal theory. I'm just questioning whether this legal theory articulated by the board is a fundamentally flawed legal theory of military discrimination. And here's my concern. If this is a correct proposition that it seems to me we've reduced 4311 to cases in which the agency says, you know what? We can't stand those military guys. They're just people coming back from the military are anathema. Anybody that comes back from the military whether they're going a week or whether they're going five years away, find a way to get rid of them. That's clearly not all that Congress had in mind with 4311. No, I mean 4311 extends a large number of actions that employers including not giving people rights when they come back from the service. 4312 says you have a right to reemployment and we stand by that again whether or not the removal was not for the right reason in 2000. The benefits that a New Yorker to Mr. Erickson whether or not he was on leave whether or not he resigned whether or not he separated his benefits come when he returns and applies for reemployment. And he dropped the ball. Yes. And I do want to point out that Mr. and we did make this point in our brief that Mr. Erickson still has the right to request reemployment with the postal service. If he just doesn't have the automatic reemployment rights that 4312 provides he would still be required to go through the same reemployment procedures that any former employee would. But he certainly to this day would be permitted to request reemployment and the allegations that in his brief. Correct. His right is no greater than yours in mind. Well, as a former employee he has the same rights as any other former employee and he would be subject to the rules. I presume his military service would also give him some kind of an advantage at that point. Right. He would be subject to the responsibility. Yes, Your Honor. That would not be taken away from no absolutely. Okay. Thank you. Thank you, Your Honor. Thank you. May I please the court just to as a matter of clarification with regard to 4311 and 4312. Again, it's the petitioners assertion that 4311 was violated by virtue of his removal. The possible remedy for that is not necessarily monetary. It's not necessarily back pay. It could be in terms of pension credits. It could be in terms of seniority. The issue of 4312 with regard to reemployment, it's the petitioners assertion that that aspect of the record is somewhat ambiguous and it would be the petitioners recommendation to remain the case for further development on the record. For example, the respondents brief at appendix A104 and A105 seemed to indicate that Mr. Erickson did indeed submit agreements that he did indeed complain about the fact that he was removed from employment and it was not at all clear to him that he had reemployment rights after he had been terminated in 2000. Mr. Erickson has been awarded the Purt Heart, the bronze star. He has come back after being removed from employment and has attempted very diligently to obtain his position back in the Postal Service. He is exactly the type of petitioner that Congress envisioned when enacting you Sarah. Any fine points with regard to the time calculations cannot possibly obviate the fact that he was discriminated against in 2000 because he was removed by virtue of his military service, not absence because absence is necessitated by the military service. So the full board's decision is unambiguously incorrect. This court can vacate the board's decision with respect to the removal and the petitioner request of remand on the issue of the re-instatement. What is your position with respect to the issue that Hogan was discussing with us as to whether the full board's opinion should be read as incorporating the initial decision rationale regarding abandonment? The full board amended and modified the initial decision. Correct. It was affirmed and modified. It wasn't at all clear whether or not or how they were necessarily interpreting the initial decision, how they were planning it. It appeared that they were mixing the two claims, the 4311 and the 4312 claims. For that reason, the full board decision reads in a manner that would create precedent that permits agencies to remove appellants by virtue of their absence. And by virtue of their absence for military service, it would create the type of precedent that would prohibit any civilian employee who leaves from the military and comes back who was terminated from appealing to that MSPB for reinstating the claim. I can certainly understand your argument that that's problematic. But as Hogan's argument that she began with both in her brief and here was abandoned. Now, the question that I have is whether that abandonment issue is before us in the sense that the full board embraced not only the rationale that it expressed, but also the rationale that it's present in the initial decision by the administrator. The petitioner would argue that the MSPB did not embrace the abandonment issue with respect to the actual re-employment. It was an entitled re-employment by virtue of the fact that he remained on military service for an extended period of time and therefore was not covered by you Sarah. It was not clear from the full board's decision whether or not that same reasoning applied to the 4311 claim. So the petitioner would simply conclude by reiterating that this court can vacate the MSPB's decision by virtue of the fact that Mr. Erickson successfully established his unmilitary leave. He was a civilian employee that while he was unmilitary leave, he was denied a benefit employment when he was terminated from the full board's service and also denied re-employment rights. Thank you. Thank you very much. And both counsel. Can you just submit it