Legal Case Summary

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. And the only concluding point that I would make about that is that the only thing we have in the record here is sworn testimony that it was in the initial application. Nothing to contradict that whatsoever. It is certainly no express finding by the administrative judge that my client was not credible on that point. What is the remedy for a violation of the statute here? It is laid out in 33-30C, the violation of the statute first and foremost is an order of compliance directing the agency to reconstruct the hiring process in compliance with law. My client would also be entitled to back wages if you could show that he received the job. Well, he has to win the job. You would have to show that in the construction. I was talking about getting in the talent pool. Absolutely. That is what we are talking about, Judge. He would also receive a little bit of data damages if we could show, as we believe we have, that there was a willful violation of his DEOA rights. What then would happen to the person who, I guess it was Mr. Black, who received the position? I guess he was at the base and he was given the position. What would happen to him? Well, Judge, if you prevail. The reconstruction is the standard remedy in this type of case. What typically happens is the Army will often simply pay or the agency will simply pay back wages and grant an equivalent position. At this point, your client, to my client. At this point, frankly, it is the Army that has dragged this case out for so long. It is not clear what positions remain. That is just not in the record. What were on remedy? What would you think is an appropriate remedy for the destruction of the records during the course of litigation? Well, the appropriate remedy, Judge, would be a sanction against the Army. It has been a number of circuits of hell that when you destroy documents, that is enough to assume that the documents are adverse to the possessor. That is a reasonable assumption. The administrative judge abused his discretion by refusing to sanction the Army for destroying the applications. As a judge pointed out, the applications of other individuals who applied, particularly the applications of the non-veterans who applied. The government itself actually cites to the applications that we do have in the record. In the sense of the government speaking out of two sides of its mouth, the one hand who wants to say that the destroyed applications weren't material. But in the other hand, it is perfectly happy to cite the applications we have to try to draw a comparison. We would contend the comparison between the way that those applicants were treated and the way that Mr. Kirklandall was treated are just absolutely material in its case. According to a document, retention policy, right? Yes

. It wasn't willful. There was no showing that someone said, please go in and destroy these records, which are unsubjudicated. We tried to ask some questions about that at the hearing below and the Army successfully objected. So we just don't have any record on that at all. But it was while the litigation was pending. Absolutely. The documents were destroyed in 2000. They were destroyed in 2002. Yes, Judge. Absolutely. And the one that denied that Blacks file was available until March. Until the weeks before the hearing of Americans. So the last year. Absolutely. They produced that document. That was trying to rely on it. You know, that was one they said was not available. Yes, Judge. Yes. And it is troubling if there's the kind of the Army seems to want the selective reliance on certain applications, but not others. I mean, but argue that somehow the other ones are immaterial. And I write in what I'm about to say, which is I understood the agency to take the position that the material that was in the OER and in the ORB is simply irrelevant unless it corroborates the same information that already existed in the application. That is the Army's position. Yes, Judge. And that position, however, is really basically. For example, you couldn't in from the mill from the Army's point of view, you can't incorporate something by reference simply incorporating by reference. You couldn't say in your application, please see exhibit A. You'd have to take what's in exhibit A and put it in your application and then say, if you want, if you want to see something duplicative, go look at exhibit A. But Judge, the Army might say that, but in fact, the ORB and the OER were included as part of the application. They weren't somehow attached to the application or incorporated by reference. And the Army's contention, the military's contention that they should not have considered the OER and the ORB is really without, not only is it without any basis at all

. It's in fact contrary to federal regulation, both the job posting and the federal register state that an application can be in any written format. There's no dispute that the OER and the ORB are in our documents in a written format. Did your application be in French, the French language? You want to be rejected for being in the French language? Yes, you're. What happens if your application is in militaries? Army talk. Wasn't that one of the grounds that the gentleman who wrote the final letter said, look, my civilian people aren't expected to understand military talk. Well, in Translate. Judge, first of all, what we have here is we have an Army personnel document. It's really virtually the equivalent of a lawyer, the equivalent of a transcript from prior experience. It's a universal document. And it's really, it's the Army's own personnel document being considered, being looked at when a man being included as part of an application for a job with the Army. You know, as far from being cryptic or incomprehensible, this document is a universal routine document possessed by all officers in the military. And Mr. Judge, I have to ask the five of you. I'll tell you, for example, whose last job it was casual, whatever that was. The last line on the ORB judge refers to his departure from the military. Is it in the last? I didn't bring my magnifying glass. Look at the bottom of the ORB. And your contention is that the dates over on the left, if you know how to read them are from two. And the copy was a little clearer. But you look, you see, he was a platoon leader in Fort Carson for a period of time. Yes, Judge. But that doesn't really tell you what he did as a platoon leader, I suppose, unless you know what platoon leaders do. Well, unless you turn the page in his application and look at the resume judge, which actually describes what he did in each of these positions. And also the OER, which describes what he did as a maintenance officer. And it's not just my contention, Judge, or my clients contention. And Mr. Gentry agreed on the record that the ORB shows the tabulation in months. Mr. Kirklandell occupied each position that he had in the Army. And he also testified, this is the kind of document that he's familiar with and that people, there's not so familiar with, because he said there's a 384-385 with the record, because they deal with lots of veterans and because they place many people into the military. So if at one extreme you have the application in French, which is incomprehensible, this is at the opposite extreme

. This is a core military document that the government's own witnesses have testified they're familiar with. And testify that it shows exactly what we say it shows. It shows the tabulation in months for each prior position that Mr. Kirklandell held. There's a many question that he has for physics like any issue in this case about whether he has physically capable of doing. Absolutely not. That has never been contended by anyone. The disability is not a fact. Yes, yes, Judge. Is there any, can you point to me in any of these documents here in his application that show his knowledge of supply, contracting, budget, and business operation, phone activities? Well, Judge, it's a preliminary matter. And again, this is not- Yes, yes or no? Yes, he was an aviation support. He was an aviation maintenance officer. And it says that in his OER. I believe it says that in his resume that appears on 81-82, says that he's- Commanding- Does a man's personal day have a budget problem? His OER does describe how he managed and requisitioned. And his resume also describes how he managed and requisitioned parts and how he streamlined the process. Judge, and I think that goes directly to the kinds of- I don't think it's important at this stage of the game. Because the year our unit is that he made a sufficient application in order to be considered. Yes, absolutely, Judge. And- And, um, Mr.- Again, I can say it's not just me. Mr. Gentry said it too. He said it at 368. I believe he said it at 366 too. Yeah, I can just- I can tell that these positions are sufficiently related to the opening that they qualify as a specialized experience. So it's more than just us. It's the government's own witness. And with that, I will reserve the remainder of my- Is it- is it- is it agreed that the position for which he was applying is- Is it position that he actually held while serving in the military that got civilian? He- you honor- he testified- And it's certainly there was no contrary testimony that he- And- is a matter of record that he was in aviation supply- Maintenance officer at Fort Bragg. And he testified and there was no testimony at the contrary. That was essentially the military equivalent of the civilian- This is a civilian version of that same job that he was applying for. At the same facility

. At the same- same exact facility. Thank you. Thank you. Thank you. I reserve the remainder of my time for a battle. Mr. Austin. Thank you, Your Honor. May it please the court. This court should affirm the decision of the board because Mr. Kirkendall failed to demonstrate that the Army violated any veterans preference statue. In particular, five USC sections 33-112, 33-13, and 33-09-1 in determining that he was unqualified for the supervisory equipment specialist position for which he applied. This court should also affirm the board's decision denying Mr. Kirkendall's motion for an adverse inference and a shifting of the burden of proof based upon the destruction of certain documents because the administrative judge did not abuse his discretion in denying that motion. Finally, the administrative judge's decision complies with the procedural requirements of five CFR section 120-111B, and even assuming there was noncompliance, which there wasn't, Mr. Kirkendall has not demonstrated that he was harmed by that purported noncompliance. Now, why is it that it's not an abusive discretion when the documents that he needed to demonstrate his case were destroyed. Once they found out he was challenging it. It's not an abusive, well, first of all, your honor, there are two different standards. And the first standard for determining the remedy for, let's not worry about the standard, but why is it wrong? Why was it not wrong for the trial judge for the administrative judge not to sanction them in some way? There's a sign of documents that every time the case. Well, the first response goes to your honor's assumption that it's central to the case. It's not central. How would you prove a case otherwise? Well, he proved his case by loop, well, there's two parts to it. The documents are pertinent to the case. They would relevant to the case. Well, what would the wasteboven have in you and according to law, have you destroyed pertinent documents? There's no question they're relevant to. He would stand up for the straight phase and say, well, you're really, really, really that important. Well, your honor, they certainly, if the discovery request had come in, we would not refuse to turn them over on the document. They're not admissible evidence or reasonably would lead to the discoverability of admissible evidence. The point is, in this particular case, they're not material in light of all the evidence that existed, particularly with a usaric claim. There are seven veterans who applied for this position

. Seven veterans who applied, six were determined to be qualified. The only one who wasn't determined to be qualified was Mr. Kirkendor. He wasn't determined to be qualified because of what was on his resume. It had nothing to do as the administrative judge stated with respect to the fact that he had military. I mean, besides the fact that it defies common sense, really, that why the army would discriminate on the basis of a military background. It's hard to believe that they would. They approved six of the seven people. So you have to look at the facts to determine not where they were relevant. Certainly, they were relevant, but were they material? Were they sufficient enough that they could have changed the outcome of this case? And certainly, they couldn't have. It's interesting to look at what we know that. We have to take your word for it. We don't know, Your Honor. We don't know, especially the ones that were done. One way we know that is, for example, to compare it to the case they cite in the Nativity Dodd case, which is not a case of this court. But it's a case of the from the from the board. And in the Nativity Dodd, these were documents that were destroyed that were the substance, the very heart of the case. In fact, there was an allegation of falsification of documents, and these documents were the originals of what he allegedly falsified. So in that case, the petitioner knew exactly what the documents held. In his view, he said they would they would excopate him. In this case, we don't know what the documents were. We can use any logical inference to say they were peripheral at best. I mean, only two possible, the twelve applications that could have anything to do with you Sarah, for example, and they were two non-veterans who were determined to be qualified. And, you know, using pure speculation, perhaps Mr. Kirklandell could have shown some difference in the analysis that applied with respect to those two applications. But even those veterans didn't make the certificate of eligible. So if the army was going to discriminate on the basis of military experience for whatever reason, it wouldn't with them because it didn't help those non-veterans. And it's just illogical that these documents could have altered a finding by the administrative judge that there was no evidence whatsoever to support the use of the ceremony. So, what Judge Clevger was asking Mr. Herring, if the ORB was in the original file, I guess we're talking here about the file that was presented to Ms. Tolover. Yes. During the initial eligibility determination. What is your position on that as far as what the record shows? I do not dramatically disagree with what Mr. Herring represented to the court. I believe that the test, I do disagree with him on one point in that as I think there is a clear finding by the administrative judge that it was not included in the record. What is clear and that's clearly a real use. No, I don't think it is clearly a real use. I think it's a credibility. Here's how I view the evidence as a whole on that point. Mr. Herring, did anybody testify that the... Mr. Herring, he testified he's... He testified it was in there because when you're showing the exhibit, which didn't include the ORB, he said, well that's got everything my original account is except for the ORB. Mr. Herring, provided testimony. Well, it's very interesting. That's testimony from any of your clients that said that the ORB was not in the original file. The testimony, I think, counsel correctly represented. I'm not saying it's ambiguous on that. They said they do not know. What makes their substantial evidence support the administrative judge is finding on that point or two things. First of all, if you look in the record or documents that are put together from the original application does not include the ORB. I do not know why that is, but it's in a separate place. But the reason that's important is if you look at the facts of this case. No, but there's testimony. There's testimony under oath around Mr

. Yes. During the initial eligibility determination. What is your position on that as far as what the record shows? I do not dramatically disagree with what Mr. Herring represented to the court. I believe that the test, I do disagree with him on one point in that as I think there is a clear finding by the administrative judge that it was not included in the record. What is clear and that's clearly a real use. No, I don't think it is clearly a real use. I think it's a credibility. Here's how I view the evidence as a whole on that point. Mr. Herring, did anybody testify that the... Mr. Herring, he testified he's... He testified it was in there because when you're showing the exhibit, which didn't include the ORB, he said, well that's got everything my original account is except for the ORB. Mr. Herring, provided testimony. Well, it's very interesting. That's testimony from any of your clients that said that the ORB was not in the original file. The testimony, I think, counsel correctly represented. I'm not saying it's ambiguous on that. They said they do not know. What makes their substantial evidence support the administrative judge is finding on that point or two things. First of all, if you look in the record or documents that are put together from the original application does not include the ORB. I do not know why that is, but it's in a separate place. But the reason that's important is if you look at the facts of this case. No, but there's testimony. There's testimony under oath around Mr. Kyrgynol that said my ORB was in the original pack. That's correct. Now, if he is incredible, if the trial judge says, I think you're a liar, right? Then that can undercut Mr. Kyrgynol's testimony. There's no such finding. There is not, however, Mr. Kyrgynol could also be mistaken. And the reason that's... He testified flat out. It's missing. He does not have to be lying. He could be mistaken. He could honestly believe that, but be wrong. And the reason that's a particular possibility, year, year, year, honor, is because we have a second resume that was submitted, a third resume that was submitted, various notices of disagreement, and all sorts of filings that came in at different times. I would agree with you, year, honor, that if they were just one submission of a resume and the ORB is clearly in the record, then you could reasonably conclude it came in at that time. But when you have all these various... That's assumed for purposes of argument that the original filing, including the OR and the ORB and the indisturances... Right. It's certainly helpful to them to have it at that time. Your client decided that it would ignore. It would not pay any attention to what was in the military document. That's correct, your honor. And that was a reasonable decision. They were presented with evidence by the veteran that related to experience that he had had made the material to the position for which he was being examined. Correct? I would agree with that, your honor

. Kyrgynol that said my ORB was in the original pack. That's correct. Now, if he is incredible, if the trial judge says, I think you're a liar, right? Then that can undercut Mr. Kyrgynol's testimony. There's no such finding. There is not, however, Mr. Kyrgynol could also be mistaken. And the reason that's... He testified flat out. It's missing. He does not have to be lying. He could be mistaken. He could honestly believe that, but be wrong. And the reason that's a particular possibility, year, year, year, honor, is because we have a second resume that was submitted, a third resume that was submitted, various notices of disagreement, and all sorts of filings that came in at different times. I would agree with you, year, honor, that if they were just one submission of a resume and the ORB is clearly in the record, then you could reasonably conclude it came in at that time. But when you have all these various... That's assumed for purposes of argument that the original filing, including the OR and the ORB and the indisturances... Right. It's certainly helpful to them to have it at that time. Your client decided that it would ignore. It would not pay any attention to what was in the military document. That's correct, your honor. And that was a reasonable decision. They were presented with evidence by the veteran that related to experience that he had had made the material to the position for which he was being examined. Correct? I would agree with that, your honor. You don't believe that the military documents are showing at least some experience, materials of the position for which is examined? I think what's important, your honor, is... Because he knew about rotary wing copters. It certainly shows that he knew about them without the document. Right. Excuse me. He flew. He flew. You're saying he can fly them in maintenance. Flying in maintenance are two separate things. But your honor, the important part here, is that... I want to stay on the point. And I've said, you think that it was perfectly legitimate under 3311 for your client to simply, in essence, throw those military documents in the waste basket. I think it was reasonable for the Army to set up a process by which it would evaluate applications. And to utilize its process in a reasonable manner to review applications. So, to exclude experience that's material to the position of which is examined? I think that's... I think that's a set up a process that excludes the information and the process still passes, Master. Well, Mr. Gentry explains that on J.A. 173. He states, there is no requirement for my staff to interpret any personnel administrative formats other than those required for federal civil service employment, nor did they request in the vacancy announcement that such other forms be provided with your resume. Neither is it required that my staff have a comprehensive knowledge of the military personnel assignment system, inclusive of military occupational series, military training doctrine, and significant assignment systems or military grades and ranks. That is the way that the personnel office operates within the Army. It's a very poor way of operating within the same environment as the military, but.

. You don't believe that the military documents are showing at least some experience, materials of the position for which is examined? I think what's important, your honor, is... Because he knew about rotary wing copters. It certainly shows that he knew about them without the document. Right. Excuse me. He flew. He flew. You're saying he can fly them in maintenance. Flying in maintenance are two separate things. But your honor, the important part here, is that... I want to stay on the point. And I've said, you think that it was perfectly legitimate under 3311 for your client to simply, in essence, throw those military documents in the waste basket. I think it was reasonable for the Army to set up a process by which it would evaluate applications. And to utilize its process in a reasonable manner to review applications. So, to exclude experience that's material to the position of which is examined? I think that's... I think that's a set up a process that excludes the information and the process still passes, Master. Well, Mr. Gentry explains that on J.A. 173. He states, there is no requirement for my staff to interpret any personnel administrative formats other than those required for federal civil service employment, nor did they request in the vacancy announcement that such other forms be provided with your resume. Neither is it required that my staff have a comprehensive knowledge of the military personnel assignment system, inclusive of military occupational series, military training doctrine, and significant assignment systems or military grades and ranks. That is the way that the personnel office operates within the Army. It's a very poor way of operating within the same environment as the military, but... Well, this is not required to know it, but they certainly should be required to find it out. Well, it's a civilian. And they're going to do it very easily, because they're in the same organization. Well, I would put to this year on her, and that is that the requirement is simply what is required in the SF-171 and the other forms that are administered. Yeah, that is... That is 171 to the existing one. Well, when it did, it just started. The only problem is that when the government decided that they didn't want to have a SF-171, which is the most rigid little document in the world, and this is... I don't apply for job in the government. You know, right on the back of your non-volume, you know, no particular form is required. Right, but the point is here that they wanted... They didn't want to have a SF-171. As in gentry saying, essentially, OES, a form is required, you can't just give us bits and pieces of information that respond to our request for information. What? When you got to package it up, the way it used to be packaged up. Now, what Mr. Gentry is saying that we do not want to transform a document ourselves onto your resume. You put on your resume what the dates are that you work in that position and demonstrate why you qualify for the position. Don't leave it up to the personnel office to try to understand what could be an endless array of documents for an endless amount of positions and try to transform it themselves into your resume. And for example, let's look at the ORB. Let's actually look at the ORB and try to translate it, even if we get that far. What it says is, as best I can read it, it doesn't have a beginning date or an ending date, but for the two positions that Mr. Kirkendall identifies on his first resume. And again, he identifies a third position on his third resume, three weeks after Mr. Black was selected for the position

.. Well, this is not required to know it, but they certainly should be required to find it out. Well, it's a civilian. And they're going to do it very easily, because they're in the same organization. Well, I would put to this year on her, and that is that the requirement is simply what is required in the SF-171 and the other forms that are administered. Yeah, that is... That is 171 to the existing one. Well, when it did, it just started. The only problem is that when the government decided that they didn't want to have a SF-171, which is the most rigid little document in the world, and this is... I don't apply for job in the government. You know, right on the back of your non-volume, you know, no particular form is required. Right, but the point is here that they wanted... They didn't want to have a SF-171. As in gentry saying, essentially, OES, a form is required, you can't just give us bits and pieces of information that respond to our request for information. What? When you got to package it up, the way it used to be packaged up. Now, what Mr. Gentry is saying that we do not want to transform a document ourselves onto your resume. You put on your resume what the dates are that you work in that position and demonstrate why you qualify for the position. Don't leave it up to the personnel office to try to understand what could be an endless array of documents for an endless amount of positions and try to transform it themselves into your resume. And for example, let's look at the ORB. Let's actually look at the ORB and try to translate it, even if we get that far. What it says is, as best I can read it, it doesn't have a beginning date or an ending date, but for the two positions that Mr. Kirkendall identifies on his first resume. And again, he identifies a third position on his third resume, three weeks after Mr. Black was selected for the position. Why did he put that on his first resume? But let's look at what it says here. It says that he spent nine months in the first position and three months in the second position. Mr. Kirkendall on his third resume says he spent 14 months in one position and four months in the other. So the very document that he relies on shows that he meets that would have the bare minimum, the 12 months of requirements for the position. And that would only be if he can subsequently fulfill the requirements for all 12 of those months, did every one of those requirements on each of this time. It's a bit different from the eight and nine years of requirements that Mr. Black and the other veterans and the other disabled veterans who made the certificates of eligibility had. And he uses languages like coordinates and monitors. Well, Mr. Toliver didn't understand what that meant that he met the specific requirements. He puts on his resume, which is that J.A. 87. He says he worked in this position, which the LRB says he worked that at three months from 1989 to 1989. What does that mean? One day, one month, two months, three months. And this Toliver did not understand what he meant by that. So even if you use the LRB, you just get the three months, even though two months after Mr. Black is appointed, he says it was four months. He says 1989 to 1990 for his first job. Was that mean he started in December and ended in January? Ms. Toliver didn't know what needs to occur here is not to turn the board into another personnel system. What needs to occur here is as this court said in able is to ensure that the Navy uses, I'm sorry, the Army uses. He calls the police. He knows a lot, but has our supervisor did. Well, wondered why she had not considered these things. Well, I don't agree with that interpretation of the testimony. I believe what Mr. Gentry said. Again, Mr. Gentry had viewed all three resumes

. Why did he put that on his first resume? But let's look at what it says here. It says that he spent nine months in the first position and three months in the second position. Mr. Kirkendall on his third resume says he spent 14 months in one position and four months in the other. So the very document that he relies on shows that he meets that would have the bare minimum, the 12 months of requirements for the position. And that would only be if he can subsequently fulfill the requirements for all 12 of those months, did every one of those requirements on each of this time. It's a bit different from the eight and nine years of requirements that Mr. Black and the other veterans and the other disabled veterans who made the certificates of eligibility had. And he uses languages like coordinates and monitors. Well, Mr. Toliver didn't understand what that meant that he met the specific requirements. He puts on his resume, which is that J.A. 87. He says he worked in this position, which the LRB says he worked that at three months from 1989 to 1989. What does that mean? One day, one month, two months, three months. And this Toliver did not understand what he meant by that. So even if you use the LRB, you just get the three months, even though two months after Mr. Black is appointed, he says it was four months. He says 1989 to 1990 for his first job. Was that mean he started in December and ended in January? Ms. Toliver didn't know what needs to occur here is not to turn the board into another personnel system. What needs to occur here is as this court said in able is to ensure that the Navy uses, I'm sorry, the Army uses. He calls the police. He knows a lot, but has our supervisor did. Well, wondered why she had not considered these things. Well, I don't agree with that interpretation of the testimony. I believe what Mr. Gentry said. Again, Mr. Gentry had viewed all three resumes. He viewed all three resumes. And by the time the third resume had been submitted, which is, which is a concession by Mr. Kirkendol, that he didn't do a very good job on the first resume, because he didn't even put in, didn't even list the position, which he claims is half of his time that that qualifies him for the position that puts him between two years and three years. But after all that, what Mr. Gentry says, I think it's embedded in there. I think if you look at all three of his resumes, if you look at the documents that were submitted late, if you look at the documents that the Army does not consider, it's our policy not to consider, I think it's there. If he does another resume and list this in the appropriate fashion, which we can consider for a subsequent position, he never said, based upon the information that was submitted at the time that he would agree with any determination that Mr. Kirkendol demonstrated that he was qualified for the position. And I would emphasize to the court, the issue here is not whether or not Mr. Kirkendol was qualified for the position. The issue is whether Mr. Kirkendol demonstrated that he was qualified for the position and he did not. And the Army had a reasonable process as this required, and able to assure that that happens. And if nothing else, I think this court should look at the sheet that Mr. Oliver used, which is at pending. Pendex 75, which shows the analysis that she did. And I think this court should see from that document that there was a reasonable analysis that was applied here, a reasonable determination was made that he didn't qualify. There is a reason why six veterans qualified and Mr. Kirkendol didn't. It's because of a combination that he did. And what that one says, unable to determine the extent of his knowledge of the characteristics and properties of rotary-wing aircraft. That's one of the things that she mentions there. Yes. What else she mentioned? Well, she also lacked details. She says generally ahead of that. You know, talking much broadly. She also claims that she says something brief. What is that? That's the details. That's details. That's details. Do you speak for for instance, resume and then one M, which is the overall determination that he was not qualified

. He viewed all three resumes. And by the time the third resume had been submitted, which is, which is a concession by Mr. Kirkendol, that he didn't do a very good job on the first resume, because he didn't even put in, didn't even list the position, which he claims is half of his time that that qualifies him for the position that puts him between two years and three years. But after all that, what Mr. Gentry says, I think it's embedded in there. I think if you look at all three of his resumes, if you look at the documents that were submitted late, if you look at the documents that the Army does not consider, it's our policy not to consider, I think it's there. If he does another resume and list this in the appropriate fashion, which we can consider for a subsequent position, he never said, based upon the information that was submitted at the time that he would agree with any determination that Mr. Kirkendol demonstrated that he was qualified for the position. And I would emphasize to the court, the issue here is not whether or not Mr. Kirkendol was qualified for the position. The issue is whether Mr. Kirkendol demonstrated that he was qualified for the position and he did not. And the Army had a reasonable process as this required, and able to assure that that happens. And if nothing else, I think this court should look at the sheet that Mr. Oliver used, which is at pending. Pendex 75, which shows the analysis that she did. And I think this court should see from that document that there was a reasonable analysis that was applied here, a reasonable determination was made that he didn't qualify. There is a reason why six veterans qualified and Mr. Kirkendol didn't. It's because of a combination that he did. And what that one says, unable to determine the extent of his knowledge of the characteristics and properties of rotary-wing aircraft. That's one of the things that she mentions there. Yes. What else she mentioned? Well, she also lacked details. She says generally ahead of that. You know, talking much broadly. She also claims that she says something brief. What is that? That's the details. That's details. That's details. Do you speak for for instance, resume and then one M, which is the overall determination that he was not qualified. And but the business about not knowing the characteristics and properties of the helicopter is just wrong, right? No, I believe it's right. If you give credit to the ORB. I believe it's still wrong, Your Honor. I believe if you look at his resume, which is what she was operating on, she could not tell that information. If you look at the ORB, you get closer. But then the ORB, if you look at that person, what doesn't say anything about what he did, the ORB only talks about the time. It's the OER, I think that Your Honor is probably referring to, which does give him credit in greater detail of having worked seven months. And that's all it shows. We will not ever know how to stack up with the rest of them and what the rest of them submitted and how they created it and how many resumes they submitted and what the ORB said and so forth. And the something in this case, the equivalents, because they were destroyed. Well, we do know for four people. We know for Mr. Perkendorall, who is a 10 point veteran and we know the other three veterans who made the certificate of eligible, two five point veterans and one 10 point veterans. They were preserved because they were in the discrimination claim that Mr. Perkendorall filed those documents were in that file. That's why we have them. And that's what was requested in that litigation. Had to requested all these files in the other litigation, then you know, that would have been there too. Well, I think we've just up your time. Thank you. Thank you. Thank you. If you need a minute or more, I'll tell more than we may have, since we may have Council Electrified. Thank you, Judge. Let me first clear up a mistake on the government's part. The government said that Mr. Gentry's opinion about the effectiveness and the clarity of Mr. Perkendorall's resume was based on looking at all three. At the hearing, I asked him. So in reference to specifically through the first resume. So you can see from this resume that Mr

. And but the business about not knowing the characteristics and properties of the helicopter is just wrong, right? No, I believe it's right. If you give credit to the ORB. I believe it's still wrong, Your Honor. I believe if you look at his resume, which is what she was operating on, she could not tell that information. If you look at the ORB, you get closer. But then the ORB, if you look at that person, what doesn't say anything about what he did, the ORB only talks about the time. It's the OER, I think that Your Honor is probably referring to, which does give him credit in greater detail of having worked seven months. And that's all it shows. We will not ever know how to stack up with the rest of them and what the rest of them submitted and how they created it and how many resumes they submitted and what the ORB said and so forth. And the something in this case, the equivalents, because they were destroyed. Well, we do know for four people. We know for Mr. Perkendorall, who is a 10 point veteran and we know the other three veterans who made the certificate of eligible, two five point veterans and one 10 point veterans. They were preserved because they were in the discrimination claim that Mr. Perkendorall filed those documents were in that file. That's why we have them. And that's what was requested in that litigation. Had to requested all these files in the other litigation, then you know, that would have been there too. Well, I think we've just up your time. Thank you. Thank you. Thank you. If you need a minute or more, I'll tell more than we may have, since we may have Council Electrified. Thank you, Judge. Let me first clear up a mistake on the government's part. The government said that Mr. Gentry's opinion about the effectiveness and the clarity of Mr. Perkendorall's resume was based on looking at all three. At the hearing, I asked him. So in reference to specifically through the first resume. So you can see from this resume that Mr. Perkendorall's prior positions give him the specialized experience that he needs and he had one word answer. Yes, that's a page 368. We walked him through every single resume and confirmed that each one individually independently conveyed that information and he said yes each time. I also think I also appreciate the government's candor. I think that the government's council just said that the ORB does show use the word bear minimum. I guess he intended as a slur, but he did say that it does show that it has that it has the necessary 12 months of prior experience. And so the government's council and Mr. Gentry and Mr. Perkendorall are all in agreement on that point. And finally, the government's council pointed out that the subsequent resumes had more detail about other positions that were also relevant to the job opening. But that's simply besides the point. There's no requirement. So as long as the first resume had showed that he qualified for the job, it surely cannot be disqualifying. That he actually had more experience than he showed on his first resume. And finally, the government makes reference to Miss Tolliver's testimony. And I'd point out a couple of things about that. First of all, this court can decide what way to give to Miss Tolliver's testimony based on other evidence in the record. And we have here the applications, which are clear on their face and show what experience Mr. Perkendorall had. And secondly, Miss Tolliver also, when she said that she couldn't discern that Mr. Perkendorall had the necessary experience, she also said that she refused to look at the OER. And the OER also contains glowing descriptions of the role that Mr. Perkendorall performed as an aviation maintenance officer. And so her determination that the resume was an attic, it was based on a refusal to look at the other parts of Mr. Perkendorall's application. And finally, I would point out her testimony as the court is well aware, was contradicted by her own supervisor. We said that that resume did in fact show that Mr. Perkendorall had the necessary qualifications. If you prevail on the ELA statutory violation of the Argonne-Turrent-Triolin, does the issue over the destroyed documents become moot? No judges, is there a release that you believe you're entitled to, as opposed to our view that maybe the court itself should provide some sanction to the government doesn't benefit you? Yes, Judge. It's absolutely not moot. First of all, it's relevant to our U

. Perkendorall's prior positions give him the specialized experience that he needs and he had one word answer. Yes, that's a page 368. We walked him through every single resume and confirmed that each one individually independently conveyed that information and he said yes each time. I also think I also appreciate the government's candor. I think that the government's council just said that the ORB does show use the word bear minimum. I guess he intended as a slur, but he did say that it does show that it has that it has the necessary 12 months of prior experience. And so the government's council and Mr. Gentry and Mr. Perkendorall are all in agreement on that point. And finally, the government's council pointed out that the subsequent resumes had more detail about other positions that were also relevant to the job opening. But that's simply besides the point. There's no requirement. So as long as the first resume had showed that he qualified for the job, it surely cannot be disqualifying. That he actually had more experience than he showed on his first resume. And finally, the government makes reference to Miss Tolliver's testimony. And I'd point out a couple of things about that. First of all, this court can decide what way to give to Miss Tolliver's testimony based on other evidence in the record. And we have here the applications, which are clear on their face and show what experience Mr. Perkendorall had. And secondly, Miss Tolliver also, when she said that she couldn't discern that Mr. Perkendorall had the necessary experience, she also said that she refused to look at the OER. And the OER also contains glowing descriptions of the role that Mr. Perkendorall performed as an aviation maintenance officer. And so her determination that the resume was an attic, it was based on a refusal to look at the other parts of Mr. Perkendorall's application. And finally, I would point out her testimony as the court is well aware, was contradicted by her own supervisor. We said that that resume did in fact show that Mr. Perkendorall had the necessary qualifications. If you prevail on the ELA statutory violation of the Argonne-Turrent-Triolin, does the issue over the destroyed documents become moot? No judges, is there a release that you believe you're entitled to, as opposed to our view that maybe the court itself should provide some sanction to the government doesn't benefit you? Yes, Judge. It's absolutely not moot. First of all, it's relevant to our U.S. Heroclaim, which we, the classic method of an in-video discrimination case as the court is well aware is to compare members of the past to class, the people who were in the past to class. We just can't even do that without those documents. It's absolutely relevant to our U.S. Heroclaim. And second, at a minimum for the VEO, VEOA claim, it helps us to show willfulness. So it's absolutely not moot to get those documents and willfulness would entitle, as a matter of remedy, would entitle our client to liquidate damages as well. So they're absolutely not moot. And the board is out able to reward and liquidate damages? Well, the liquidated damages are provided for by the statute. The 33-30C uses those exact words. Liquidated damages for a willful violation. In conclusion, Your Honors, let me just say that if 33-11, which requires, which requires agencies to take into account the material experience, all material experience for preference eligible veterans doesn't apply to Mr. Kirkland. But it's difficult to see how it could apply to any veteran at all. Frankly, I believe that this is a fairly easy case. You have here Mr. Kirklandall's applications, which are apparent on their face, which show that he have unnecessary qualifications. And secondly, you have the government's own testimony. The government's witness his own testimony that those applications showed exactly that. Mr. Kirklandall has now been seeking relief on his claim for almost 10 years. And I would respectfully urge this court to end his Odyssey and to conclude that this record, the substantial evidence can only support the conclusion that Mr. Kirklandall's V.O.A. rights were violated. For those reasons and the reasons stated in our brief, respectfully request the Court to reverse the MSPB. All right. Thank you very much.

The next case will be done in Kirkland, Bell, via the Department of the Army. Mr. Haring, will you be ready? May it please the court, my name is Justin Haring and I represent the petitioner John Kirk and Bell. The Army violated my client's VEOA rights specifically under 33-11-2 when it refused to credit him with all the material experience he had for the position he was seeking. The Army did this even though his application clearly showed that he had the requisite experience and even though the Army's own witness testified the application. There seems to be some just be hearing about the contents of your client's original application package. Your client testified that his ORB was in the original package even though the government exhibit that showed what was in the original package didn't include the ORB. Was there any testimony from any of the government people about what was in the contents of the original client? Judge, when the government's witnesses were asked, when the witness's hover was asked, she said that she frankly didn't remember what was in the original packet. Mr. Kirkland all did testify under no exactly what he testified. I mean your case is stronger if the ORB is in the record. If it's not. The administrative logger, the administrative logger described what was in the original package cited to an exhibit I believe and he did not include the ORB in the listing. He had the OER and the discharge of the ORB. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. He did not. 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He did not. He did not. He did not. He did not. He did not. He did not do. He did not. He did not. He did not. He did not. And that's the mother. That's the mother. That's the point of the separation. finding can conclude an effect that my client lied under oath simply through silence. Moreover, I would point out that there is no evidence or indication in the record that my client mis-spoken or mis-tested by. Even if the judge had made an adverse credibility finance, not clear on what basis he possibly could have made as a decision or how it could be supported by. I will take a lot of time here if the argument. But it does, I think, your case is harmed if the ORB is not in the record. It is enhanced if it is. Well, I certainly agree, Judge, that the ORB helps our case a good deal. And the only concluding point that I would make about that is that the only thing we have in the record here is sworn testimony that it was in the initial application. Nothing to contradict that whatsoever. It is certainly no express finding by the administrative judge that my client was not credible on that point. What is the remedy for a violation of the statute here? It is laid out in 33-30C, the violation of the statute first and foremost is an order of compliance directing the agency to reconstruct the hiring process in compliance with law. My client would also be entitled to back wages if you could show that he received the job. Well, he has to win the job. You would have to show that in the construction. I was talking about getting in the talent pool. Absolutely. That is what we are talking about, Judge. He would also receive a little bit of data damages if we could show, as we believe we have, that there was a willful violation of his DEOA rights. What then would happen to the person who, I guess it was Mr. Black, who received the position? I guess he was at the base and he was given the position. What would happen to him? Well, Judge, if you prevail. The reconstruction is the standard remedy in this type of case. What typically happens is the Army will often simply pay or the agency will simply pay back wages and grant an equivalent position. At this point, your client, to my client. At this point, frankly, it is the Army that has dragged this case out for so long. It is not clear what positions remain. That is just not in the record. What were on remedy? What would you think is an appropriate remedy for the destruction of the records during the course of litigation? Well, the appropriate remedy, Judge, would be a sanction against the Army. It has been a number of circuits of hell that when you destroy documents, that is enough to assume that the documents are adverse to the possessor. That is a reasonable assumption. The administrative judge abused his discretion by refusing to sanction the Army for destroying the applications. As a judge pointed out, the applications of other individuals who applied, particularly the applications of the non-veterans who applied. The government itself actually cites to the applications that we do have in the record. In the sense of the government speaking out of two sides of its mouth, the one hand who wants to say that the destroyed applications weren't material. But in the other hand, it is perfectly happy to cite the applications we have to try to draw a comparison. We would contend the comparison between the way that those applicants were treated and the way that Mr. Kirklandall was treated are just absolutely material in its case. According to a document, retention policy, right? Yes. It wasn't willful. There was no showing that someone said, please go in and destroy these records, which are unsubjudicated. We tried to ask some questions about that at the hearing below and the Army successfully objected. So we just don't have any record on that at all. But it was while the litigation was pending. Absolutely. The documents were destroyed in 2000. They were destroyed in 2002. Yes, Judge. Absolutely. And the one that denied that Blacks file was available until March. Until the weeks before the hearing of Americans. So the last year. Absolutely. They produced that document. That was trying to rely on it. You know, that was one they said was not available. Yes, Judge. Yes. And it is troubling if there's the kind of the Army seems to want the selective reliance on certain applications, but not others. I mean, but argue that somehow the other ones are immaterial. And I write in what I'm about to say, which is I understood the agency to take the position that the material that was in the OER and in the ORB is simply irrelevant unless it corroborates the same information that already existed in the application. That is the Army's position. Yes, Judge. And that position, however, is really basically. For example, you couldn't in from the mill from the Army's point of view, you can't incorporate something by reference simply incorporating by reference. You couldn't say in your application, please see exhibit A. You'd have to take what's in exhibit A and put it in your application and then say, if you want, if you want to see something duplicative, go look at exhibit A. But Judge, the Army might say that, but in fact, the ORB and the OER were included as part of the application. They weren't somehow attached to the application or incorporated by reference. And the Army's contention, the military's contention that they should not have considered the OER and the ORB is really without, not only is it without any basis at all. It's in fact contrary to federal regulation, both the job posting and the federal register state that an application can be in any written format. There's no dispute that the OER and the ORB are in our documents in a written format. Did your application be in French, the French language? You want to be rejected for being in the French language? Yes, you're. What happens if your application is in militaries? Army talk. Wasn't that one of the grounds that the gentleman who wrote the final letter said, look, my civilian people aren't expected to understand military talk. Well, in Translate. Judge, first of all, what we have here is we have an Army personnel document. It's really virtually the equivalent of a lawyer, the equivalent of a transcript from prior experience. It's a universal document. And it's really, it's the Army's own personnel document being considered, being looked at when a man being included as part of an application for a job with the Army. You know, as far from being cryptic or incomprehensible, this document is a universal routine document possessed by all officers in the military. And Mr. Judge, I have to ask the five of you. I'll tell you, for example, whose last job it was casual, whatever that was. The last line on the ORB judge refers to his departure from the military. Is it in the last? I didn't bring my magnifying glass. Look at the bottom of the ORB. And your contention is that the dates over on the left, if you know how to read them are from two. And the copy was a little clearer. But you look, you see, he was a platoon leader in Fort Carson for a period of time. Yes, Judge. But that doesn't really tell you what he did as a platoon leader, I suppose, unless you know what platoon leaders do. Well, unless you turn the page in his application and look at the resume judge, which actually describes what he did in each of these positions. And also the OER, which describes what he did as a maintenance officer. And it's not just my contention, Judge, or my clients contention. And Mr. Gentry agreed on the record that the ORB shows the tabulation in months. Mr. Kirklandell occupied each position that he had in the Army. And he also testified, this is the kind of document that he's familiar with and that people, there's not so familiar with, because he said there's a 384-385 with the record, because they deal with lots of veterans and because they place many people into the military. So if at one extreme you have the application in French, which is incomprehensible, this is at the opposite extreme. This is a core military document that the government's own witnesses have testified they're familiar with. And testify that it shows exactly what we say it shows. It shows the tabulation in months for each prior position that Mr. Kirklandell held. There's a many question that he has for physics like any issue in this case about whether he has physically capable of doing. Absolutely not. That has never been contended by anyone. The disability is not a fact. Yes, yes, Judge. Is there any, can you point to me in any of these documents here in his application that show his knowledge of supply, contracting, budget, and business operation, phone activities? Well, Judge, it's a preliminary matter. And again, this is not- Yes, yes or no? Yes, he was an aviation support. He was an aviation maintenance officer. And it says that in his OER. I believe it says that in his resume that appears on 81-82, says that he's- Commanding- Does a man's personal day have a budget problem? His OER does describe how he managed and requisitioned. And his resume also describes how he managed and requisitioned parts and how he streamlined the process. Judge, and I think that goes directly to the kinds of- I don't think it's important at this stage of the game. Because the year our unit is that he made a sufficient application in order to be considered. Yes, absolutely, Judge. And- And, um, Mr.- Again, I can say it's not just me. Mr. Gentry said it too. He said it at 368. I believe he said it at 366 too. Yeah, I can just- I can tell that these positions are sufficiently related to the opening that they qualify as a specialized experience. So it's more than just us. It's the government's own witness. And with that, I will reserve the remainder of my- Is it- is it- is it agreed that the position for which he was applying is- Is it position that he actually held while serving in the military that got civilian? He- you honor- he testified- And it's certainly there was no contrary testimony that he- And- is a matter of record that he was in aviation supply- Maintenance officer at Fort Bragg. And he testified and there was no testimony at the contrary. That was essentially the military equivalent of the civilian- This is a civilian version of that same job that he was applying for. At the same facility. At the same- same exact facility. Thank you. Thank you. Thank you. I reserve the remainder of my time for a battle. Mr. Austin. Thank you, Your Honor. May it please the court. This court should affirm the decision of the board because Mr. Kirkendall failed to demonstrate that the Army violated any veterans preference statue. In particular, five USC sections 33-112, 33-13, and 33-09-1 in determining that he was unqualified for the supervisory equipment specialist position for which he applied. This court should also affirm the board's decision denying Mr. Kirkendall's motion for an adverse inference and a shifting of the burden of proof based upon the destruction of certain documents because the administrative judge did not abuse his discretion in denying that motion. Finally, the administrative judge's decision complies with the procedural requirements of five CFR section 120-111B, and even assuming there was noncompliance, which there wasn't, Mr. Kirkendall has not demonstrated that he was harmed by that purported noncompliance. Now, why is it that it's not an abusive discretion when the documents that he needed to demonstrate his case were destroyed. Once they found out he was challenging it. It's not an abusive, well, first of all, your honor, there are two different standards. And the first standard for determining the remedy for, let's not worry about the standard, but why is it wrong? Why was it not wrong for the trial judge for the administrative judge not to sanction them in some way? There's a sign of documents that every time the case. Well, the first response goes to your honor's assumption that it's central to the case. It's not central. How would you prove a case otherwise? Well, he proved his case by loop, well, there's two parts to it. The documents are pertinent to the case. They would relevant to the case. Well, what would the wasteboven have in you and according to law, have you destroyed pertinent documents? There's no question they're relevant to. He would stand up for the straight phase and say, well, you're really, really, really that important. Well, your honor, they certainly, if the discovery request had come in, we would not refuse to turn them over on the document. They're not admissible evidence or reasonably would lead to the discoverability of admissible evidence. The point is, in this particular case, they're not material in light of all the evidence that existed, particularly with a usaric claim. There are seven veterans who applied for this position. Seven veterans who applied, six were determined to be qualified. The only one who wasn't determined to be qualified was Mr. Kirkendor. He wasn't determined to be qualified because of what was on his resume. It had nothing to do as the administrative judge stated with respect to the fact that he had military. I mean, besides the fact that it defies common sense, really, that why the army would discriminate on the basis of a military background. It's hard to believe that they would. They approved six of the seven people. So you have to look at the facts to determine not where they were relevant. Certainly, they were relevant, but were they material? Were they sufficient enough that they could have changed the outcome of this case? And certainly, they couldn't have. It's interesting to look at what we know that. We have to take your word for it. We don't know, Your Honor. We don't know, especially the ones that were done. One way we know that is, for example, to compare it to the case they cite in the Nativity Dodd case, which is not a case of this court. But it's a case of the from the from the board. And in the Nativity Dodd, these were documents that were destroyed that were the substance, the very heart of the case. In fact, there was an allegation of falsification of documents, and these documents were the originals of what he allegedly falsified. So in that case, the petitioner knew exactly what the documents held. In his view, he said they would they would excopate him. In this case, we don't know what the documents were. We can use any logical inference to say they were peripheral at best. I mean, only two possible, the twelve applications that could have anything to do with you Sarah, for example, and they were two non-veterans who were determined to be qualified. And, you know, using pure speculation, perhaps Mr. Kirklandell could have shown some difference in the analysis that applied with respect to those two applications. But even those veterans didn't make the certificate of eligible. So if the army was going to discriminate on the basis of military experience for whatever reason, it wouldn't with them because it didn't help those non-veterans. And it's just illogical that these documents could have altered a finding by the administrative judge that there was no evidence whatsoever to support the use of the ceremony. So, what Judge Clevger was asking Mr. Herring, if the ORB was in the original file, I guess we're talking here about the file that was presented to Ms. Tolover. Yes. During the initial eligibility determination. What is your position on that as far as what the record shows? I do not dramatically disagree with what Mr. Herring represented to the court. I believe that the test, I do disagree with him on one point in that as I think there is a clear finding by the administrative judge that it was not included in the record. What is clear and that's clearly a real use. No, I don't think it is clearly a real use. I think it's a credibility. Here's how I view the evidence as a whole on that point. Mr. Herring, did anybody testify that the... Mr. Herring, he testified he's... He testified it was in there because when you're showing the exhibit, which didn't include the ORB, he said, well that's got everything my original account is except for the ORB. Mr. Herring, provided testimony. Well, it's very interesting. That's testimony from any of your clients that said that the ORB was not in the original file. The testimony, I think, counsel correctly represented. I'm not saying it's ambiguous on that. They said they do not know. What makes their substantial evidence support the administrative judge is finding on that point or two things. First of all, if you look in the record or documents that are put together from the original application does not include the ORB. I do not know why that is, but it's in a separate place. But the reason that's important is if you look at the facts of this case. No, but there's testimony. There's testimony under oath around Mr. Kyrgynol that said my ORB was in the original pack. That's correct. Now, if he is incredible, if the trial judge says, I think you're a liar, right? Then that can undercut Mr. Kyrgynol's testimony. There's no such finding. There is not, however, Mr. Kyrgynol could also be mistaken. And the reason that's... He testified flat out. It's missing. He does not have to be lying. He could be mistaken. He could honestly believe that, but be wrong. And the reason that's a particular possibility, year, year, year, honor, is because we have a second resume that was submitted, a third resume that was submitted, various notices of disagreement, and all sorts of filings that came in at different times. I would agree with you, year, honor, that if they were just one submission of a resume and the ORB is clearly in the record, then you could reasonably conclude it came in at that time. But when you have all these various... That's assumed for purposes of argument that the original filing, including the OR and the ORB and the indisturances... Right. It's certainly helpful to them to have it at that time. Your client decided that it would ignore. It would not pay any attention to what was in the military document. That's correct, your honor. And that was a reasonable decision. They were presented with evidence by the veteran that related to experience that he had had made the material to the position for which he was being examined. Correct? I would agree with that, your honor. You don't believe that the military documents are showing at least some experience, materials of the position for which is examined? I think what's important, your honor, is... Because he knew about rotary wing copters. It certainly shows that he knew about them without the document. Right. Excuse me. He flew. He flew. You're saying he can fly them in maintenance. Flying in maintenance are two separate things. But your honor, the important part here, is that... I want to stay on the point. And I've said, you think that it was perfectly legitimate under 3311 for your client to simply, in essence, throw those military documents in the waste basket. I think it was reasonable for the Army to set up a process by which it would evaluate applications. And to utilize its process in a reasonable manner to review applications. So, to exclude experience that's material to the position of which is examined? I think that's... I think that's a set up a process that excludes the information and the process still passes, Master. Well, Mr. Gentry explains that on J.A. 173. He states, there is no requirement for my staff to interpret any personnel administrative formats other than those required for federal civil service employment, nor did they request in the vacancy announcement that such other forms be provided with your resume. Neither is it required that my staff have a comprehensive knowledge of the military personnel assignment system, inclusive of military occupational series, military training doctrine, and significant assignment systems or military grades and ranks. That is the way that the personnel office operates within the Army. It's a very poor way of operating within the same environment as the military, but... Well, this is not required to know it, but they certainly should be required to find it out. Well, it's a civilian. And they're going to do it very easily, because they're in the same organization. Well, I would put to this year on her, and that is that the requirement is simply what is required in the SF-171 and the other forms that are administered. Yeah, that is... That is 171 to the existing one. Well, when it did, it just started. The only problem is that when the government decided that they didn't want to have a SF-171, which is the most rigid little document in the world, and this is... I don't apply for job in the government. You know, right on the back of your non-volume, you know, no particular form is required. Right, but the point is here that they wanted... They didn't want to have a SF-171. As in gentry saying, essentially, OES, a form is required, you can't just give us bits and pieces of information that respond to our request for information. What? When you got to package it up, the way it used to be packaged up. Now, what Mr. Gentry is saying that we do not want to transform a document ourselves onto your resume. You put on your resume what the dates are that you work in that position and demonstrate why you qualify for the position. Don't leave it up to the personnel office to try to understand what could be an endless array of documents for an endless amount of positions and try to transform it themselves into your resume. And for example, let's look at the ORB. Let's actually look at the ORB and try to translate it, even if we get that far. What it says is, as best I can read it, it doesn't have a beginning date or an ending date, but for the two positions that Mr. Kirkendall identifies on his first resume. And again, he identifies a third position on his third resume, three weeks after Mr. Black was selected for the position. Why did he put that on his first resume? But let's look at what it says here. It says that he spent nine months in the first position and three months in the second position. Mr. Kirkendall on his third resume says he spent 14 months in one position and four months in the other. So the very document that he relies on shows that he meets that would have the bare minimum, the 12 months of requirements for the position. And that would only be if he can subsequently fulfill the requirements for all 12 of those months, did every one of those requirements on each of this time. It's a bit different from the eight and nine years of requirements that Mr. Black and the other veterans and the other disabled veterans who made the certificates of eligibility had. And he uses languages like coordinates and monitors. Well, Mr. Toliver didn't understand what that meant that he met the specific requirements. He puts on his resume, which is that J.A. 87. He says he worked in this position, which the LRB says he worked that at three months from 1989 to 1989. What does that mean? One day, one month, two months, three months. And this Toliver did not understand what he meant by that. So even if you use the LRB, you just get the three months, even though two months after Mr. Black is appointed, he says it was four months. He says 1989 to 1990 for his first job. Was that mean he started in December and ended in January? Ms. Toliver didn't know what needs to occur here is not to turn the board into another personnel system. What needs to occur here is as this court said in able is to ensure that the Navy uses, I'm sorry, the Army uses. He calls the police. He knows a lot, but has our supervisor did. Well, wondered why she had not considered these things. Well, I don't agree with that interpretation of the testimony. I believe what Mr. Gentry said. Again, Mr. Gentry had viewed all three resumes. He viewed all three resumes. And by the time the third resume had been submitted, which is, which is a concession by Mr. Kirkendol, that he didn't do a very good job on the first resume, because he didn't even put in, didn't even list the position, which he claims is half of his time that that qualifies him for the position that puts him between two years and three years. But after all that, what Mr. Gentry says, I think it's embedded in there. I think if you look at all three of his resumes, if you look at the documents that were submitted late, if you look at the documents that the Army does not consider, it's our policy not to consider, I think it's there. If he does another resume and list this in the appropriate fashion, which we can consider for a subsequent position, he never said, based upon the information that was submitted at the time that he would agree with any determination that Mr. Kirkendol demonstrated that he was qualified for the position. And I would emphasize to the court, the issue here is not whether or not Mr. Kirkendol was qualified for the position. The issue is whether Mr. Kirkendol demonstrated that he was qualified for the position and he did not. And the Army had a reasonable process as this required, and able to assure that that happens. And if nothing else, I think this court should look at the sheet that Mr. Oliver used, which is at pending. Pendex 75, which shows the analysis that she did. And I think this court should see from that document that there was a reasonable analysis that was applied here, a reasonable determination was made that he didn't qualify. There is a reason why six veterans qualified and Mr. Kirkendol didn't. It's because of a combination that he did. And what that one says, unable to determine the extent of his knowledge of the characteristics and properties of rotary-wing aircraft. That's one of the things that she mentions there. Yes. What else she mentioned? Well, she also lacked details. She says generally ahead of that. You know, talking much broadly. She also claims that she says something brief. What is that? That's the details. That's details. That's details. Do you speak for for instance, resume and then one M, which is the overall determination that he was not qualified. And but the business about not knowing the characteristics and properties of the helicopter is just wrong, right? No, I believe it's right. If you give credit to the ORB. I believe it's still wrong, Your Honor. I believe if you look at his resume, which is what she was operating on, she could not tell that information. If you look at the ORB, you get closer. But then the ORB, if you look at that person, what doesn't say anything about what he did, the ORB only talks about the time. It's the OER, I think that Your Honor is probably referring to, which does give him credit in greater detail of having worked seven months. And that's all it shows. We will not ever know how to stack up with the rest of them and what the rest of them submitted and how they created it and how many resumes they submitted and what the ORB said and so forth. And the something in this case, the equivalents, because they were destroyed. Well, we do know for four people. We know for Mr. Perkendorall, who is a 10 point veteran and we know the other three veterans who made the certificate of eligible, two five point veterans and one 10 point veterans. They were preserved because they were in the discrimination claim that Mr. Perkendorall filed those documents were in that file. That's why we have them. And that's what was requested in that litigation. Had to requested all these files in the other litigation, then you know, that would have been there too. Well, I think we've just up your time. Thank you. Thank you. Thank you. If you need a minute or more, I'll tell more than we may have, since we may have Council Electrified. Thank you, Judge. Let me first clear up a mistake on the government's part. The government said that Mr. Gentry's opinion about the effectiveness and the clarity of Mr. Perkendorall's resume was based on looking at all three. At the hearing, I asked him. So in reference to specifically through the first resume. So you can see from this resume that Mr. Perkendorall's prior positions give him the specialized experience that he needs and he had one word answer. Yes, that's a page 368. We walked him through every single resume and confirmed that each one individually independently conveyed that information and he said yes each time. I also think I also appreciate the government's candor. I think that the government's council just said that the ORB does show use the word bear minimum. I guess he intended as a slur, but he did say that it does show that it has that it has the necessary 12 months of prior experience. And so the government's council and Mr. Gentry and Mr. Perkendorall are all in agreement on that point. And finally, the government's council pointed out that the subsequent resumes had more detail about other positions that were also relevant to the job opening. But that's simply besides the point. There's no requirement. So as long as the first resume had showed that he qualified for the job, it surely cannot be disqualifying. That he actually had more experience than he showed on his first resume. And finally, the government makes reference to Miss Tolliver's testimony. And I'd point out a couple of things about that. First of all, this court can decide what way to give to Miss Tolliver's testimony based on other evidence in the record. And we have here the applications, which are clear on their face and show what experience Mr. Perkendorall had. And secondly, Miss Tolliver also, when she said that she couldn't discern that Mr. Perkendorall had the necessary experience, she also said that she refused to look at the OER. And the OER also contains glowing descriptions of the role that Mr. Perkendorall performed as an aviation maintenance officer. And so her determination that the resume was an attic, it was based on a refusal to look at the other parts of Mr. Perkendorall's application. And finally, I would point out her testimony as the court is well aware, was contradicted by her own supervisor. We said that that resume did in fact show that Mr. Perkendorall had the necessary qualifications. If you prevail on the ELA statutory violation of the Argonne-Turrent-Triolin, does the issue over the destroyed documents become moot? No judges, is there a release that you believe you're entitled to, as opposed to our view that maybe the court itself should provide some sanction to the government doesn't benefit you? Yes, Judge. It's absolutely not moot. First of all, it's relevant to our U.S. Heroclaim, which we, the classic method of an in-video discrimination case as the court is well aware is to compare members of the past to class, the people who were in the past to class. We just can't even do that without those documents. It's absolutely relevant to our U.S. Heroclaim. And second, at a minimum for the VEO, VEOA claim, it helps us to show willfulness. So it's absolutely not moot to get those documents and willfulness would entitle, as a matter of remedy, would entitle our client to liquidate damages as well. So they're absolutely not moot. And the board is out able to reward and liquidate damages? Well, the liquidated damages are provided for by the statute. The 33-30C uses those exact words. Liquidated damages for a willful violation. In conclusion, Your Honors, let me just say that if 33-11, which requires, which requires agencies to take into account the material experience, all material experience for preference eligible veterans doesn't apply to Mr. Kirkland. But it's difficult to see how it could apply to any veteran at all. Frankly, I believe that this is a fairly easy case. You have here Mr. Kirklandall's applications, which are apparent on their face, which show that he have unnecessary qualifications. And secondly, you have the government's own testimony. The government's witness his own testimony that those applications showed exactly that. Mr. Kirklandall has now been seeking relief on his claim for almost 10 years. And I would respectfully urge this court to end his Odyssey and to conclude that this record, the substantial evidence can only support the conclusion that Mr. Kirklandall's V.O.A. rights were violated. For those reasons and the reasons stated in our brief, respectfully request the Court to reverse the MSPB. All right. Thank you very much