All right, Mr. Dewey, the floor is yours, the podium is yours. Mr. Chief Judge, and may I please the court, the key issue of statutory interpretation in this case is how should the board determine whether a veteran has suffered lost wages and benefits in the face of an agency's VEOA violation? The parties offer starkly different interpretations of that statute. The agency has adopted the board's view, which is that the way this should be done is there should be a rebound to the agency. Councillor, can I ask you one quick question? I'm going to distract you for a second. I'm sorry about that, but what do you want? What is your end result here? Does a remedy that says reverse and remand no reconstruction of the process is necessary because we have an admission that he would have been selected? Obviously you want that, and that would be great. But then the question is, so then what? Do we say so, put him in that position, or do we say so, and give him back? The difference between Coast Guard and that, or do we say put him in the next available position? I mean, what's the remedy? Suppose I agree with you 100% on the merits. What's the remedy that we order? Well, I think that the court has recognized that perspective relief wouldn't be appropriate. That what do you mean? In the Kirklandall case, the panel decision, just a few weeks ago I believe, the court I believe it said it wouldn't be adequate. I don't think it said it wouldn't be appropriate. Well, it seemed like an agreement with the board's decision in Walker that that would be insufficient. In sufficient, doesn't mean inappropriate. I suppose. But yeah, I think that the reverse in remand should be to have a retroactive selection and to have the awarded back pay, but also as we point out, we would like to. All right, a retroactive selection. So are you telling us we should put him in this job? This position, that's right. Or should we say, well, see here, this bothers me a little bit because I don't like the idea of displacing other employees. Now, I realize this particular lady wasn't displaced. She was moved over to the death, that's next door
. But nonetheless, I mean, in general, the idea that our court would force the government to hire someone for that specific position is a little concerning to me. That dilemma, your honor, points out the flaw of this reconstruction doctrine that your opinion in Kirklandall, the unbunked decision, talked about the hazards of letting these cases drag on a long time. Because there's a problem with the government. If there's going to be a challenge to a hiring selection, it should be made expeditiously. If it's not, the government is at risk for paying two people for the same job. And five judges agree with you, and I don't think the majority in Kirklandall disputed that particular point. Because the person who gets into the position, even though she never should have, does in your certain employee rights that justify, she can't just be plucked out of it. All the more reason to honor. The congressional goal that these cases be decided within 120 days of filing. That is the goal of Congress, either to opt out provision of 33, 30 B section. But you're not going to tell us we have to order them. You didn't do it. You got to do it quicker next time. It doesn't really help your clients. Well, mainly it was error for the full board to do what it did in Marshall for. There was no reason. It was inconsistent with the VEOA to do what the board did in Marshall for. It never should have done this remand. It had everything it needed in the record before it
. And that's the key error that I think is very important, presidentially. Of course, Mr. Marshall seeks what you're on, or just mentioned. But he also cares very deeply about veterans generally, and hopes that the court will look at what happened in Marshall for and say that was wrong. And it needs to be reversed and needs to be addressed directly, not just the particular benefit. But wouldn't we be saying it's wrong if we agreed with you that a reconstruction in a circumstance where the government has acknowledged that he would have gotten the job is unnecessary and inappropriate. I mean, this case actually reminds me a little bit of the one we just had, right? I mean, you've got a government admission regarding who would have gotten the contract there. You've got a government admission here regarding who would have gotten the job if he had properly been considered. But if I'm understanding correctly, Judge Mori, it seems like you're asking for, might we just resolve this on narrower grounds than what Mr. Marshall seeks. Do I, I don't know if I understand that right? But I think the reason is, again, that there are very few opportunities for the court to address this issue. As we found out in weed just a few months ago, there is no apologize jurisdiction for those reconstruction orders. So this is as good as it's going to get for the court to address this issue of whether or not it's appropriate for the board, the full board, to order these kinds of reconstructions. And look at the delays in these cases. Well, look, let me interrupt you. Because I thought I just heard you say that you're not asking for the position. And that your answer to this question really, the only available remedy, then would be the difference in pay between the GS-13, which by error was not given and what was paid by the Coast Guard. Also, the liquidated damages, we seek an opportunity to, now that the remedy, it would be- Well, liquidated damages. Liquidated, that's the difference in pay
. Right, but as I read the statute, that's essentially a double, in enhanced, kind of like a willful infringement, it's enhanced- it's enhanced remedy where the violation is willful. Is it enhanced, you said liquidated? Well, right, because the statute in that willful section refers to the lost wages and benefits it is liquidated. Are you requesting a multiple of differences in pay? The two times, I mean, the lost wages and benefits, and then we seek an opportunity below- The most wages, the difference. Yes, the difference, right. Yeah, he was employed at the Coast Guard, right, just the differential. No, one grade difference or the same grade? One grade, I believe he's G12 in the Coast Guard. But that still ends up being a fairly substantial- For double, the difference between the GS-12 and the GS-13? That's what we ultimately seek. We recognize- Based on willfulness? Well, finding of- I'm speaking about that, what I seek from the court today, I interpret a judge more- I was wondering why we're here, I thought these were important questions. Judge Moore raised, you say you want reconstruction, everyone admitted a mistake was made. Right. And so it may very well be that a fair remedy for the mistake is the difference in pay, between the GS-12 and 13. I gather that was requested in reference or is that complete? No, it was- Well, originally the administrative judge ordered without specifying the differential, ordered that, lost those lost wages and benefits- And what happened? And what happened is the agency filed a petition for review and the full board essentially vacated all remedy discussion and just said, all of that's premature, you must go through our reconstruction doctor. So all that was white to clean. So, yes, Chief Judge Michelle, we recognize that, no, at this stage we don't have a record to show willfulness, we seek that. Mr. Marshall sought discovery below for the purpose of showing the willfulness. We seek an opportunity to do that now- Something you pursue on remand. Exactly. Sorry for any confusion on that
. Well, what you're really saying is, what the board had to do under the law is give Mr. Marshall the differential between the two salaries for the period of two-thirds of the year. So, in 2004 to 2006? Actually, I would respectfully, Your Honor, I think that that continues to this day because in 2006 they didn't offer this position. Well, in fact, in the board find that it was not a comparable position, even that they offered- Yes, I'm sure. That it differed in many respects, not just location, but like a job description of all kinds of different respects. Page 29 of the record, that's right, Your Honor. And it was even worse. So, if you look at, I believe it's further in the record, 60 to 63, you can see the emails at the time that offer was made. This was, I know this is a disputed point, but Mr. Marshall pointed out that this was presented to him like, you better not take this offer. Yes, we'll put something together for you in the budget area at some division, somewhere in the Atlanta area. And it was a very strong hint to him. Again, this is a contended point, I recognize. But don't take this offer, it was the message he received. Can I ask you a totally extraneous question? Are you representing the former service member, pro bono basis? Yes. Good for you. Well, thank you. And I want to emphasize, again, the breadth of the decision that he seeks here. He did not seek an opportunity to cash out and simply get this differential
. He seeks from this court a remedy that will be beneficial to veterans generally. He seeks an opportunity for veterans to get these cases decided for reasons stated to some degree in Judge Moore's opinion in court. Well, what would the practical outcome be if, what do I side the money? If we were persuaded that he should be in the position that apparently now is vacant, it was never filled. In the reconstruction, the agency chose not to fill it. So let's assume it's still there as a vacancy. If we were persuaded by your arguments and ordered that he be given that job, would he take it or is he going to stay at the Coast Guard? I don't know that I can answer that question at this point because I don't think he's ever had, well, I know that he's never had the job offered. And I mentioned the circumstances of the previous offer. So I'm afraid I can't really say for sure, it would depend on the circumstances of the office. Should somebody be allowed to say, give me reinstatement without having to add? And if you do, I'll quit the job that I have over the Coast Guard and go to work at one step higher for HHS as a budget out. Well, I read the statute as saying that the award of lost wages and benefits would be independent of whether or not the veteran actually takes the job. Because if it's not independent, then we can have the situation I just outlined where the agency just makes it very clear. You better not take this job. I want a different point. To the extent he's asking for the position, since he holds a different position at a different agency, shouldn't he have to certify in order to show the bona fide of his request to be given the position that if he is, he'll quit the Coast Guard and actually start performing the budget analyst duties at HHS. Otherwise, this whole thing is just a big fiction. Well, I think the fiction is ultimately this reconstruction document, but to address the point around right, I don't see how the statute imposes that kind of requirement. Well, it doesn't, but maybe the courts should, because otherwise we're just implying in game. Well, I think he doesn't really want the job, and he isn't going to do the job even if it's awarded to him, then why should we award it to him? Well, he wanted the job. Yeah, so it couldn't be the case that he really, really wanted the job and would have taken it at the time, but now the sort of tenor of the feelings in the agency might be such that he might discover at the time, it's actually offered to him that it would be so unpalatable that he couldn't go there
. Well, that's the concern I mentioned, but also consider the time. This offer was in 2004. He did what he could, to sort of mitigate his damages, so to speak, and put his life together in a new position. And so, in a way, the agency and the board's reconstruction doctor would work a perverse effect of taking so long, 29 months he was before the board, and this is all from a Passover that occurred in 2004, that it took so long that these other considerations end up being the reasons why he doesn't take the job, if that's what would happen. I don't want to use all your rebuttal time, but I just have one more question, which is, so what do we do about the fact that the agency cancelled the vacancy announcement in this case, and decided not to fill the job? I'm a little nervous about, do I, if I were to go with you, do I order, they have to put him in this job, or is it, you know, at the agency's discretion, this job, or a comparable position? And then, of course, it would be a fact finding by a lower board as to whether or not a job is comparable, kind of like it is in this case. I'm a little nervous about saying the agency must, in fact, put him in this specific job. Maybe they cancelled the vacancy announcement for a reason unrelated to him. Maybe they decide they just don't need a person in that job anymore. I mean, I don't think that's the case here, but, you know, maybe there could be, and so I'm a little nervous as an appellate court for us to say you have to put him back in that position. Well, I would go back to Kerr, the NEA, and say essentially, he should be entitled to precisely this position with the caveat that, you know, that we do the best we can under these circumstances. It's not status quo anti 100 percent necessarily. It's as much as possible. So I think perhaps language alluding to that part of Kerr, the NEA, would deal with what your honors concerned about, and just recognize that, you know, the whole divisions are sometimes eliminated. And that would, in those cases, be. But if the job or the whole set of jobs had been eliminated, then one would have expected the compliance certification by HHS to say we didn't make a selection because guess what? The job has been abolished because we don't need anybody to do that function anymore. But they didn't say that. They seem to have the burden of proof. So then perhaps since they gave no reason for not filling the job, it should be regarded as a failure of proof on their part, and that he should have been placed in that job. Absolutely
. Maybe I should have emphasized that more, but certainly in the extent there's any attempt to deviate from a pure granting of a selection for the very same position, any attempt to deviate that the burden should be a heavy one on the agency to say, why it can't do that. I'm just expressing some sympathy to far how it could, in some circumstances, there could be times where that's necessary. But I certainly would hope that there would be a heavy burden on the agency to show why that is necessary. All right. Let's hear from the government and we'll give you back some rebuttal time, Mr. Bowen. I please the court. My name is Christopher Bowen and I represent the Department of Health and Human Services. Mr. Dewey stated that the primary issue in this case is one of statutory interpretation and we absolutely agree. We believe that the language of your mandating that the board must first order the agency to comply after it has found that the oil of violation and only then make a determination of damages. I don't know if that's not really the issue. Here the agency made a mistake. Absolutely. Admitted they made a mistake. They told the would be employee that they made a mistake. They tried to fix it, but they didn't fix it very well and it wasn't acceptable. And so they were asked to do better. They say, never mind, we're going to wipe out the decision
. Now that's a little too cute, I think, that that really isn't the way I think to compensate for an error and admitted error. But I must say it doesn't fall so readily into place now five or six years later as to what the proper remedy is. At the same time, the one thing which concerns me is that the action that the agency took after apparently lots of internal turmoil. It was to say, never mind when it got going to get rid of the problem. We're going to abolish the position. Nobody ever said that the work was abolished. Nobody ever said that the person who was doing the work was moved to another position. It didn't take the work with her. It isn't really quite, I think, a straightforward appropriate way to handle a difficult situation. And I think my question for you is what, in fact, if we were starting again, should include the agency have done at that stage when Mr. Marshall said, now I really don't like what you're now offering me, whereas the initial position was filled with an income that lives were being disrupted. This is, I think, not quite the right answer. So I'm not really sure what to do about it either. But what do you think should have been done at the time? At the time when the agency admitted that it had improperly removed Mr. Marshall's name from consideration, it should have reconstructed the certificate to comply with the boards and this court's prior decisions to determine. And then basically made the decision if it still needed the position filled, who would it select, and if it would still select Mr. Marshall, it then should have paid him the difference between what he got and his G.S. 12
. And what he got and the would have gotten the G.S. 13. So they thought they had a quick fix. What do we do about that? Well, the agency, I'm quite characterized as a quick fix. The agency looked at the facts in September 2008 when the board had ordered it to reconstruct the decision and said, do we still have need of this position? And may the decision that did not? They didn't say that. They didn't abolish the position. I looked at the certificate. The certificate of compliance simply says no selection is being made. It doesn't say because the position has been abolished because we don't need to work anymore. It in effect says we just don't care to fill that vacancy. The certificate of compliance was a model of brevity, I admit. It doesn't say chose not to select from the certificate and canceled vacancy announcement. That's what it says. That is correct. But this is where I would like to stress that Mr. Marshall had the opportunity to object to the agency certificate of compliance indeed in Andre's V.D.V
.A. The first decision, which was 107 M.S.P.R. 455. This guy is pro-say in front of the board. So you want us to enforce strict waiver against a pro-say whose the beneficiary of preferential treatment at the command of the Congress of the United States? This court has to make many allowances for pro-say petitioners and the board does as well. However, one of those cases would be for she, V.P.R. and Kippie. However, in that case, it is an allowance for the interpretation of what they submit. However, in this case, Mr. Marshall submitted nothing. It submitted absolutely nothing. Your strongest argument is we should say he's waived the issue. That is one of the arguments in support of the December 2008 decision. The other argument in support of the December 2008 decision is that the board with the evidence it had in front of it had substantial evidence to justify a decision. The board had in a September 2008 decision had ordered the agency to remove the incumbent, to reselect or to list the three people it would consider, and then come back with the decision after how it wanted to choose to fill the position. The agency, obviously very nervous after the board had threatened this allery of the person in charge, brought back evidence that had removed the incumbent, it had then subsequently reconstituted the list, and then looking at their needs, they had decided that they know what they deserve. They said that they opted not to make the choice. There was nothing in there about we looked at our needs. Come on, you're putting words in the certificate of compliance that are distinctly not there. The agency opted not to make a choice. We don't know why. It's not indicated why, but they had the burden to explain why they didn't hire him, and they didn't explain. The board, based on the evidence it had in front of it, based on all that evidence it had that the agency had complied. Is there any evidence in front of the board that the work was no longer needed and therefore the position was being abolished? There was no evidence of that. Let me point something else out to you. The agency is asking for and what has been discussed is reconstruction, not new construction. I find it unpalatable that the agent would see, would say, four years later, after someone served in the position for two years, that they're canceling the vacancy. Reconstruction means go back and look at the facts as they existed at the time. The agency didn't cancel the announcement. The agency hired someone. She functioned in the job for two years. They moved her to the desk next door and then said they're not going to miss a new position. They hired anyone for this position
. The board had in a September 2008 decision had ordered the agency to remove the incumbent, to reselect or to list the three people it would consider, and then come back with the decision after how it wanted to choose to fill the position. The agency, obviously very nervous after the board had threatened this allery of the person in charge, brought back evidence that had removed the incumbent, it had then subsequently reconstituted the list, and then looking at their needs, they had decided that they know what they deserve. They said that they opted not to make the choice. There was nothing in there about we looked at our needs. Come on, you're putting words in the certificate of compliance that are distinctly not there. The agency opted not to make a choice. We don't know why. It's not indicated why, but they had the burden to explain why they didn't hire him, and they didn't explain. The board, based on the evidence it had in front of it, based on all that evidence it had that the agency had complied. Is there any evidence in front of the board that the work was no longer needed and therefore the position was being abolished? There was no evidence of that. Let me point something else out to you. The agency is asking for and what has been discussed is reconstruction, not new construction. I find it unpalatable that the agent would see, would say, four years later, after someone served in the position for two years, that they're canceling the vacancy. Reconstruction means go back and look at the facts as they existed at the time. The agency didn't cancel the announcement. The agency hired someone. She functioned in the job for two years. They moved her to the desk next door and then said they're not going to miss a new position. They hired anyone for this position. So under a reconstruction theory as opposed to a new construction theory, how is canceling the vacancy announcement possible? Well, we know they didn't cancel it. They hired. They did not cancel it in 2004. They did in fact hire Mr. Berdebri. This is 2004, the right time frame. The agency believes that it would have definitely lived in the right time frame in 2004. But based on the fact that they thought they're based on the requirements of the position in 2008, they interpreted the board to order it saying if you choose to fill the position with someone, you must submit your reasons. So we interpreted as being a present time frame. In, I believe, large, in case from the MSPB, the court actually or the board allowed consideration of a post-finding of violation event, specifically the agency had received a notification from OPM that it would not be qualified for the position. And in that, the board of held the agency's decision not to select him, even though the OPM certificate had not come in until after they had already been a viola violation found. How does that help you here? Well, it shows that post-vioa bond. No one is saying this guy is incompetent. He couldn't do the work. He fraudulently misrepresented his credentials. His suitability to do the functions of the position are not challenged. That's correct. Then what relevance does it have that in some other case that turned out the person wasn't competent to do the work? What has relevance to the extent that it shows that a post-vioa violation find event that happens after the finding can in fact have some relevance in the determination. Yeah, but there aren't any such facts in this case
. So under a reconstruction theory as opposed to a new construction theory, how is canceling the vacancy announcement possible? Well, we know they didn't cancel it. They hired. They did not cancel it in 2004. They did in fact hire Mr. Berdebri. This is 2004, the right time frame. The agency believes that it would have definitely lived in the right time frame in 2004. But based on the fact that they thought they're based on the requirements of the position in 2008, they interpreted the board to order it saying if you choose to fill the position with someone, you must submit your reasons. So we interpreted as being a present time frame. In, I believe, large, in case from the MSPB, the court actually or the board allowed consideration of a post-finding of violation event, specifically the agency had received a notification from OPM that it would not be qualified for the position. And in that, the board of held the agency's decision not to select him, even though the OPM certificate had not come in until after they had already been a viola violation found. How does that help you here? Well, it shows that post-vioa bond. No one is saying this guy is incompetent. He couldn't do the work. He fraudulently misrepresented his credentials. His suitability to do the functions of the position are not challenged. That's correct. Then what relevance does it have that in some other case that turned out the person wasn't competent to do the work? What has relevance to the extent that it shows that a post-vioa violation find event that happens after the finding can in fact have some relevance in the determination. Yeah, but there aren't any such facts in this case. So why do we care that in another case with different facts, you might get a different outcome? Well, the fact that I'm trying to draw an analogy to is the fact that the board that the agency opted not to make a selection. Obviously, you prefer that there be more of it. What assurance can you give us that the agency wasn't just livid with the sky who had made so much trouble for him? Well, we'll fix him. We'll just not fill the job, but he'll get nothing. What assurance can you give us that that's not what really happened here? Other than the presumption that federal employees generally act in good faith, there is nothing in the record. But you're waving the government would argue it is good faith that you are perfectly entitled to cancel the vacancy announcement because you don't want to hire a particular individual. Absolutely. You've argued that in other cases to us. Right? So you wouldn't necessarily even think that it's bad faith to do that. Right. That is absolutely correct. I interpreted Chief Judge Michelle's argument or a question as what evidence is there in the record that it was not the decision to cancel was not simply made out of spite. And my response to that is that one, there has been no evidence of spite prior to that. There's no evidence at all that it wasn't doubt of spite. There's no evidence in the record that the end, the circumstantial evidence would certainly suggest it was out of spite. The incredulty with which this panel confronts you doesn't give you that impression. To the extent that the Mr. Marshall challenges that the why, the agency made that selection, he had his opportunity to say something, to say anything as the board noted in his December, 2008 decisions. That's just back to waiver
. So why do we care that in another case with different facts, you might get a different outcome? Well, the fact that I'm trying to draw an analogy to is the fact that the board that the agency opted not to make a selection. Obviously, you prefer that there be more of it. What assurance can you give us that the agency wasn't just livid with the sky who had made so much trouble for him? Well, we'll fix him. We'll just not fill the job, but he'll get nothing. What assurance can you give us that that's not what really happened here? Other than the presumption that federal employees generally act in good faith, there is nothing in the record. But you're waving the government would argue it is good faith that you are perfectly entitled to cancel the vacancy announcement because you don't want to hire a particular individual. Absolutely. You've argued that in other cases to us. Right? So you wouldn't necessarily even think that it's bad faith to do that. Right. That is absolutely correct. I interpreted Chief Judge Michelle's argument or a question as what evidence is there in the record that it was not the decision to cancel was not simply made out of spite. And my response to that is that one, there has been no evidence of spite prior to that. There's no evidence at all that it wasn't doubt of spite. There's no evidence in the record that the end, the circumstantial evidence would certainly suggest it was out of spite. The incredulty with which this panel confronts you doesn't give you that impression. To the extent that the Mr. Marshall challenges that the why, the agency made that selection, he had his opportunity to say something, to say anything as the board noted in his December, 2008 decisions. That's just back to waiver. If we agree with you on waiver, the case is over. But we might not agree with you on waiver for a pro-set. Right. So is this position still exists today? It is not filled. I'm not sure. Is it exists? I'm not sure. You had discussions with agency council. I have. About this position, they said that this obviously is not in the record, but without waiving an attorney claim privilege. They have said that they have no intention to fill it right now. Why not? What's going on without waiving any privilege or anything like that with discussions? They said they simply do not need that budget analyst position. Because Miss Rosario, is that her name Miss Rosario? She's already doing the job in a newly created different position than they moved her into. She was actually moved into a part of HHS with deals with panor terrorism. So I do not believe that she is as close to- You didn't just transfer all the work over. No, that is not my impression from what the agency has told me. Miss Beach has been transferred over to another position. The board has, believe in the second decision in weed, the second board decision in weed, how it is not in fact required to in fact totally fire the incumbent from service, is simply required to remove them from the position. Mr. Dooley isn't asking that Miss Beach be fired
. If we agree with you on waiver, the case is over. But we might not agree with you on waiver for a pro-set. Right. So is this position still exists today? It is not filled. I'm not sure. Is it exists? I'm not sure. You had discussions with agency council. I have. About this position, they said that this obviously is not in the record, but without waiving an attorney claim privilege. They have said that they have no intention to fill it right now. Why not? What's going on without waiving any privilege or anything like that with discussions? They said they simply do not need that budget analyst position. Because Miss Rosario, is that her name Miss Rosario? She's already doing the job in a newly created different position than they moved her into. She was actually moved into a part of HHS with deals with panor terrorism. So I do not believe that she is as close to- You didn't just transfer all the work over. No, that is not my impression from what the agency has told me. Miss Beach has been transferred over to another position. The board has, believe in the second decision in weed, the second board decision in weed, how it is not in fact required to in fact totally fire the incumbent from service, is simply required to remove them from the position. Mr. Dooley isn't asking that Miss Beach be fired. He's just asking that there be some compensation or effort to make whole his client. Yes. You're saying no. We're not going to make him whole because we don't have to. We were saying that we have complied with the board's decisions. The board's order, with the November 2007 decision that said, while you have it conceded that you violated VO by removing his name from the list, we're not going to make a determination as to the amount of damages until we get the reconstruction. We believe that that decision was correct. In as much as it reversed the May 2000s, 7th decision from the administrative judge. But in this case, doesn't reconstruction mean add Marshall's name back in as the number one guy on the list of three or more? Reconstruction in this case means that they definitely have to consider who they were going to who is available position and based on... Who's available for the position now or who applied the position? The agency reconstruction base that was available for the position in 2004. So they have to put him back on the list? Yes they do. And because of their prior evaluation, he goes back on the list as the number one candidate of a array of candidates. I believe that is how he was ranked on the certificate. So you're not arguing that the agency made in the course of all this to offer in the GS13 position was adequate? As much as I regret it, I did not present that in the briefs. It was presented before the board many times. But the board made a fact finding that it wasn't a comparable job. How do we dispute that? And if there is an obligation to make him whole, offering him a job as a janitor, a GS5 is not going to make him whole
. He's just asking that there be some compensation or effort to make whole his client. Yes. You're saying no. We're not going to make him whole because we don't have to. We were saying that we have complied with the board's decisions. The board's order, with the November 2007 decision that said, while you have it conceded that you violated VO by removing his name from the list, we're not going to make a determination as to the amount of damages until we get the reconstruction. We believe that that decision was correct. In as much as it reversed the May 2000s, 7th decision from the administrative judge. But in this case, doesn't reconstruction mean add Marshall's name back in as the number one guy on the list of three or more? Reconstruction in this case means that they definitely have to consider who they were going to who is available position and based on... Who's available for the position now or who applied the position? The agency reconstruction base that was available for the position in 2004. So they have to put him back on the list? Yes they do. And because of their prior evaluation, he goes back on the list as the number one candidate of a array of candidates. I believe that is how he was ranked on the certificate. So you're not arguing that the agency made in the course of all this to offer in the GS13 position was adequate? As much as I regret it, I did not present that in the briefs. It was presented before the board many times. But the board made a fact finding that it wasn't a comparable job. How do we dispute that? And if there is an obligation to make him whole, offering him a job as a janitor, a GS5 is not going to make him whole. And I realize that may not have been the offer, but the bottom line is if there's a fact finding it's not comparable, kind of hamstrung there. That is correct. The employer is Jim, because if we're talking about pay differential, the pay, then he was offered the higher pay and job. He was offered the exact same pay in the exact same location and they're trying to make it a budget analyst as close as they could come. Because what you're not arguing that anymore? I would like to, yes, but admit that I've not put it in the briefs. So the answer is no, I'm not arguing that. Sadly, yes. If I could just briefly turn to the issue of willfulness, the government believes that this issue is not probably before this court. The May 2007. I don't think there's any dispute that the issue of willfulness is not before us at this time. Well, we believe that there's already been a decision on willfulness that should be affirmed. That the May 2007 decision looked at all the factors and said no, it was an honest mistake to remove his name from consideration. And that was the determination. So we don't speak to willfulness. It's not really an appeal to us right now, is it? I see that my time has expired, may I continue? Yes. I'll thank you. We believe that the extent willfulness was an issue, but because it was not an issue in the May 2007 and the New Jewish decide that there was no willfulness. Then the only time it's been raised again is as far as I can tell is in the final sentence of the opening brief where he says, well, I want a remanial willfulness. However, this doesn't really provide that and provide the court with any self-record citations or any case authority, especially invoking the requisites for a guard center that has been used in some of the board decisions as to why the May 2007 decision finding no willfulness
. And I realize that may not have been the offer, but the bottom line is if there's a fact finding it's not comparable, kind of hamstrung there. That is correct. The employer is Jim, because if we're talking about pay differential, the pay, then he was offered the higher pay and job. He was offered the exact same pay in the exact same location and they're trying to make it a budget analyst as close as they could come. Because what you're not arguing that anymore? I would like to, yes, but admit that I've not put it in the briefs. So the answer is no, I'm not arguing that. Sadly, yes. If I could just briefly turn to the issue of willfulness, the government believes that this issue is not probably before this court. The May 2007. I don't think there's any dispute that the issue of willfulness is not before us at this time. Well, we believe that there's already been a decision on willfulness that should be affirmed. That the May 2007 decision looked at all the factors and said no, it was an honest mistake to remove his name from consideration. And that was the determination. So we don't speak to willfulness. It's not really an appeal to us right now, is it? I see that my time has expired, may I continue? Yes. I'll thank you. We believe that the extent willfulness was an issue, but because it was not an issue in the May 2007 and the New Jewish decide that there was no willfulness. Then the only time it's been raised again is as far as I can tell is in the final sentence of the opening brief where he says, well, I want a remanial willfulness. However, this doesn't really provide that and provide the court with any self-record citations or any case authority, especially invoking the requisites for a guard center that has been used in some of the board decisions as to why the May 2007 decision finding no willfulness. That sounds like what you're saying is his argument is we reject it. But the question was whether it's before us. You said no, it's not before us. Now, which is it? Is it before us as a weak argument or is it not properly before us at all? I would argue that it is a weak argument. And number two, it is not probably before us at all because arguments which are not presented with market citations are waived. I'm looking back now and I see that the MSPB and one of the many iterations of this case earlier on vacated that portion of the initial decision that decided willfulness when it ordered reconstruction rather than reinstatement. And explicitly contemplated that liquidated damages might still be available. That's what I understand from the MSPB. I'm not quoting verbatim. But I understood that that decision was vacated. I mean, I realized there's a lot to keep track of here in terms of how many decisions occurred here. But I don't think that they're precluded from willfulness later on based on that. I don't think it's before us either. Okay. Right. Time has expired. Thank you very much. Mr. Dewey, two minutes of rebuttal
. That sounds like what you're saying is his argument is we reject it. But the question was whether it's before us. You said no, it's not before us. Now, which is it? Is it before us as a weak argument or is it not properly before us at all? I would argue that it is a weak argument. And number two, it is not probably before us at all because arguments which are not presented with market citations are waived. I'm looking back now and I see that the MSPB and one of the many iterations of this case earlier on vacated that portion of the initial decision that decided willfulness when it ordered reconstruction rather than reinstatement. And explicitly contemplated that liquidated damages might still be available. That's what I understand from the MSPB. I'm not quoting verbatim. But I understood that that decision was vacated. I mean, I realized there's a lot to keep track of here in terms of how many decisions occurred here. But I don't think that they're precluded from willfulness later on based on that. I don't think it's before us either. Okay. Right. Time has expired. Thank you very much. Mr. Dewey, two minutes of rebuttal. Just briefly on willfulness. Again, I can certainly concede it's not before the court. I'm just trying to avoid a misunderstanding and the interpretation by the board of a remand order just to be clear that there's nothing in the court's decision that precludes Mr. Marshall from reviewing the sub-region. I think we understand the opportunity you're trying to preserve. And I think my regret, Judge Moore, is I didn't think of the term new construction as a good way to describe what's going on at the board. And I think it's important to see this case in terms of not just Mr. Marshall's situation, but Andres, Dow, Weed, Williams, and others. All these cases that involve VEOA reconstructions have all involved this new construction. We are no longer looking backward at what happened at the time of the violation. We're doing a fictitious exercise in which the agency gets to decide what history, what history books, how they read. Tell me because I don't think I understand what is it you characterize sort of what you interpreted my thoughts on this case to be sort of a narrow holding that would benefit Mr. Marshall, but you were asking for something broader. And I guess I don't fully appreciate what that broader thing is. Everything should be done in 120 days at all possible. Reconstruction is almost certainly going to go a lot longer than that. In all of the cases I mentioned, if you go from the reconstruction order to the final decision of the board, at least 18 months. Congress meant for this to all to be done, the entire case at the board to be done in four months. And so my hope, Mr
. Just briefly on willfulness. Again, I can certainly concede it's not before the court. I'm just trying to avoid a misunderstanding and the interpretation by the board of a remand order just to be clear that there's nothing in the court's decision that precludes Mr. Marshall from reviewing the sub-region. I think we understand the opportunity you're trying to preserve. And I think my regret, Judge Moore, is I didn't think of the term new construction as a good way to describe what's going on at the board. And I think it's important to see this case in terms of not just Mr. Marshall's situation, but Andres, Dow, Weed, Williams, and others. All these cases that involve VEOA reconstructions have all involved this new construction. We are no longer looking backward at what happened at the time of the violation. We're doing a fictitious exercise in which the agency gets to decide what history, what history books, how they read. Tell me because I don't think I understand what is it you characterize sort of what you interpreted my thoughts on this case to be sort of a narrow holding that would benefit Mr. Marshall, but you were asking for something broader. And I guess I don't fully appreciate what that broader thing is. Everything should be done in 120 days at all possible. Reconstruction is almost certainly going to go a lot longer than that. In all of the cases I mentioned, if you go from the reconstruction order to the final decision of the board, at least 18 months. Congress meant for this to all to be done, the entire case at the board to be done in four months. And so my hope, Mr. Marshall, strong hope, is that the court will put a stop to this. Everything should be done in the initial proceedings before the administrative judge, if at all possible. Recognizer could be some cases merit promotion certificates come to mind where it could be the reconstruction. But I don't understand what is it you're asking us to do? You wanted all done in 120 days. And so we should rule that it's not done in 120 days. Every veteran who doesn't get their final say by that point gets what? A million dollars? I mean what happened? What is the magic solution? Well, the Congress already provided an opt out to this district court. So I'm hoping that the federal circuit will give guidance to the board that it should not let this go beyond. I mean, I don't know that there's necessarily a remedy. So you just want a one-liner speed up? What, I mean? To put it bluntly, sure, something that says that don't let it go beyond, don't do remands that are unnecessary that could have been dealt with in the initial proceedings before the A.J. Because if there is any lack of an indication like that from this court, the status quo will continue. We'll have veterans waiting years to seek redress for jobs they applied for years prior. We'll have all the problems that you would outline with Judge Moore in Perkondon. And of course, that was from the government perspective, and it's even worse from the perspective of a disabled veteran applying for a federal job. Thank you. We thank both the council. The appeal is taken under advisement.
All right, Mr. Dewey, the floor is yours, the podium is yours. Mr. Chief Judge, and may I please the court, the key issue of statutory interpretation in this case is how should the board determine whether a veteran has suffered lost wages and benefits in the face of an agency's VEOA violation? The parties offer starkly different interpretations of that statute. The agency has adopted the board's view, which is that the way this should be done is there should be a rebound to the agency. Councillor, can I ask you one quick question? I'm going to distract you for a second. I'm sorry about that, but what do you want? What is your end result here? Does a remedy that says reverse and remand no reconstruction of the process is necessary because we have an admission that he would have been selected? Obviously you want that, and that would be great. But then the question is, so then what? Do we say so, put him in that position, or do we say so, and give him back? The difference between Coast Guard and that, or do we say put him in the next available position? I mean, what's the remedy? Suppose I agree with you 100% on the merits. What's the remedy that we order? Well, I think that the court has recognized that perspective relief wouldn't be appropriate. That what do you mean? In the Kirklandall case, the panel decision, just a few weeks ago I believe, the court I believe it said it wouldn't be adequate. I don't think it said it wouldn't be appropriate. Well, it seemed like an agreement with the board's decision in Walker that that would be insufficient. In sufficient, doesn't mean inappropriate. I suppose. But yeah, I think that the reverse in remand should be to have a retroactive selection and to have the awarded back pay, but also as we point out, we would like to. All right, a retroactive selection. So are you telling us we should put him in this job? This position, that's right. Or should we say, well, see here, this bothers me a little bit because I don't like the idea of displacing other employees. Now, I realize this particular lady wasn't displaced. She was moved over to the death, that's next door. But nonetheless, I mean, in general, the idea that our court would force the government to hire someone for that specific position is a little concerning to me. That dilemma, your honor, points out the flaw of this reconstruction doctrine that your opinion in Kirklandall, the unbunked decision, talked about the hazards of letting these cases drag on a long time. Because there's a problem with the government. If there's going to be a challenge to a hiring selection, it should be made expeditiously. If it's not, the government is at risk for paying two people for the same job. And five judges agree with you, and I don't think the majority in Kirklandall disputed that particular point. Because the person who gets into the position, even though she never should have, does in your certain employee rights that justify, she can't just be plucked out of it. All the more reason to honor. The congressional goal that these cases be decided within 120 days of filing. That is the goal of Congress, either to opt out provision of 33, 30 B section. But you're not going to tell us we have to order them. You didn't do it. You got to do it quicker next time. It doesn't really help your clients. Well, mainly it was error for the full board to do what it did in Marshall for. There was no reason. It was inconsistent with the VEOA to do what the board did in Marshall for. It never should have done this remand. It had everything it needed in the record before it. And that's the key error that I think is very important, presidentially. Of course, Mr. Marshall seeks what you're on, or just mentioned. But he also cares very deeply about veterans generally, and hopes that the court will look at what happened in Marshall for and say that was wrong. And it needs to be reversed and needs to be addressed directly, not just the particular benefit. But wouldn't we be saying it's wrong if we agreed with you that a reconstruction in a circumstance where the government has acknowledged that he would have gotten the job is unnecessary and inappropriate. I mean, this case actually reminds me a little bit of the one we just had, right? I mean, you've got a government admission regarding who would have gotten the contract there. You've got a government admission here regarding who would have gotten the job if he had properly been considered. But if I'm understanding correctly, Judge Mori, it seems like you're asking for, might we just resolve this on narrower grounds than what Mr. Marshall seeks. Do I, I don't know if I understand that right? But I think the reason is, again, that there are very few opportunities for the court to address this issue. As we found out in weed just a few months ago, there is no apologize jurisdiction for those reconstruction orders. So this is as good as it's going to get for the court to address this issue of whether or not it's appropriate for the board, the full board, to order these kinds of reconstructions. And look at the delays in these cases. Well, look, let me interrupt you. Because I thought I just heard you say that you're not asking for the position. And that your answer to this question really, the only available remedy, then would be the difference in pay between the GS-13, which by error was not given and what was paid by the Coast Guard. Also, the liquidated damages, we seek an opportunity to, now that the remedy, it would be- Well, liquidated damages. Liquidated, that's the difference in pay. Right, but as I read the statute, that's essentially a double, in enhanced, kind of like a willful infringement, it's enhanced- it's enhanced remedy where the violation is willful. Is it enhanced, you said liquidated? Well, right, because the statute in that willful section refers to the lost wages and benefits it is liquidated. Are you requesting a multiple of differences in pay? The two times, I mean, the lost wages and benefits, and then we seek an opportunity below- The most wages, the difference. Yes, the difference, right. Yeah, he was employed at the Coast Guard, right, just the differential. No, one grade difference or the same grade? One grade, I believe he's G12 in the Coast Guard. But that still ends up being a fairly substantial- For double, the difference between the GS-12 and the GS-13? That's what we ultimately seek. We recognize- Based on willfulness? Well, finding of- I'm speaking about that, what I seek from the court today, I interpret a judge more- I was wondering why we're here, I thought these were important questions. Judge Moore raised, you say you want reconstruction, everyone admitted a mistake was made. Right. And so it may very well be that a fair remedy for the mistake is the difference in pay, between the GS-12 and 13. I gather that was requested in reference or is that complete? No, it was- Well, originally the administrative judge ordered without specifying the differential, ordered that, lost those lost wages and benefits- And what happened? And what happened is the agency filed a petition for review and the full board essentially vacated all remedy discussion and just said, all of that's premature, you must go through our reconstruction doctor. So all that was white to clean. So, yes, Chief Judge Michelle, we recognize that, no, at this stage we don't have a record to show willfulness, we seek that. Mr. Marshall sought discovery below for the purpose of showing the willfulness. We seek an opportunity to do that now- Something you pursue on remand. Exactly. Sorry for any confusion on that. Well, what you're really saying is, what the board had to do under the law is give Mr. Marshall the differential between the two salaries for the period of two-thirds of the year. So, in 2004 to 2006? Actually, I would respectfully, Your Honor, I think that that continues to this day because in 2006 they didn't offer this position. Well, in fact, in the board find that it was not a comparable position, even that they offered- Yes, I'm sure. That it differed in many respects, not just location, but like a job description of all kinds of different respects. Page 29 of the record, that's right, Your Honor. And it was even worse. So, if you look at, I believe it's further in the record, 60 to 63, you can see the emails at the time that offer was made. This was, I know this is a disputed point, but Mr. Marshall pointed out that this was presented to him like, you better not take this offer. Yes, we'll put something together for you in the budget area at some division, somewhere in the Atlanta area. And it was a very strong hint to him. Again, this is a contended point, I recognize. But don't take this offer, it was the message he received. Can I ask you a totally extraneous question? Are you representing the former service member, pro bono basis? Yes. Good for you. Well, thank you. And I want to emphasize, again, the breadth of the decision that he seeks here. He did not seek an opportunity to cash out and simply get this differential. He seeks from this court a remedy that will be beneficial to veterans generally. He seeks an opportunity for veterans to get these cases decided for reasons stated to some degree in Judge Moore's opinion in court. Well, what would the practical outcome be if, what do I side the money? If we were persuaded that he should be in the position that apparently now is vacant, it was never filled. In the reconstruction, the agency chose not to fill it. So let's assume it's still there as a vacancy. If we were persuaded by your arguments and ordered that he be given that job, would he take it or is he going to stay at the Coast Guard? I don't know that I can answer that question at this point because I don't think he's ever had, well, I know that he's never had the job offered. And I mentioned the circumstances of the previous offer. So I'm afraid I can't really say for sure, it would depend on the circumstances of the office. Should somebody be allowed to say, give me reinstatement without having to add? And if you do, I'll quit the job that I have over the Coast Guard and go to work at one step higher for HHS as a budget out. Well, I read the statute as saying that the award of lost wages and benefits would be independent of whether or not the veteran actually takes the job. Because if it's not independent, then we can have the situation I just outlined where the agency just makes it very clear. You better not take this job. I want a different point. To the extent he's asking for the position, since he holds a different position at a different agency, shouldn't he have to certify in order to show the bona fide of his request to be given the position that if he is, he'll quit the Coast Guard and actually start performing the budget analyst duties at HHS. Otherwise, this whole thing is just a big fiction. Well, I think the fiction is ultimately this reconstruction document, but to address the point around right, I don't see how the statute imposes that kind of requirement. Well, it doesn't, but maybe the courts should, because otherwise we're just implying in game. Well, I think he doesn't really want the job, and he isn't going to do the job even if it's awarded to him, then why should we award it to him? Well, he wanted the job. Yeah, so it couldn't be the case that he really, really wanted the job and would have taken it at the time, but now the sort of tenor of the feelings in the agency might be such that he might discover at the time, it's actually offered to him that it would be so unpalatable that he couldn't go there. Well, that's the concern I mentioned, but also consider the time. This offer was in 2004. He did what he could, to sort of mitigate his damages, so to speak, and put his life together in a new position. And so, in a way, the agency and the board's reconstruction doctor would work a perverse effect of taking so long, 29 months he was before the board, and this is all from a Passover that occurred in 2004, that it took so long that these other considerations end up being the reasons why he doesn't take the job, if that's what would happen. I don't want to use all your rebuttal time, but I just have one more question, which is, so what do we do about the fact that the agency cancelled the vacancy announcement in this case, and decided not to fill the job? I'm a little nervous about, do I, if I were to go with you, do I order, they have to put him in this job, or is it, you know, at the agency's discretion, this job, or a comparable position? And then, of course, it would be a fact finding by a lower board as to whether or not a job is comparable, kind of like it is in this case. I'm a little nervous about saying the agency must, in fact, put him in this specific job. Maybe they cancelled the vacancy announcement for a reason unrelated to him. Maybe they decide they just don't need a person in that job anymore. I mean, I don't think that's the case here, but, you know, maybe there could be, and so I'm a little nervous as an appellate court for us to say you have to put him back in that position. Well, I would go back to Kerr, the NEA, and say essentially, he should be entitled to precisely this position with the caveat that, you know, that we do the best we can under these circumstances. It's not status quo anti 100 percent necessarily. It's as much as possible. So I think perhaps language alluding to that part of Kerr, the NEA, would deal with what your honors concerned about, and just recognize that, you know, the whole divisions are sometimes eliminated. And that would, in those cases, be. But if the job or the whole set of jobs had been eliminated, then one would have expected the compliance certification by HHS to say we didn't make a selection because guess what? The job has been abolished because we don't need anybody to do that function anymore. But they didn't say that. They seem to have the burden of proof. So then perhaps since they gave no reason for not filling the job, it should be regarded as a failure of proof on their part, and that he should have been placed in that job. Absolutely. Maybe I should have emphasized that more, but certainly in the extent there's any attempt to deviate from a pure granting of a selection for the very same position, any attempt to deviate that the burden should be a heavy one on the agency to say, why it can't do that. I'm just expressing some sympathy to far how it could, in some circumstances, there could be times where that's necessary. But I certainly would hope that there would be a heavy burden on the agency to show why that is necessary. All right. Let's hear from the government and we'll give you back some rebuttal time, Mr. Bowen. I please the court. My name is Christopher Bowen and I represent the Department of Health and Human Services. Mr. Dewey stated that the primary issue in this case is one of statutory interpretation and we absolutely agree. We believe that the language of your mandating that the board must first order the agency to comply after it has found that the oil of violation and only then make a determination of damages. I don't know if that's not really the issue. Here the agency made a mistake. Absolutely. Admitted they made a mistake. They told the would be employee that they made a mistake. They tried to fix it, but they didn't fix it very well and it wasn't acceptable. And so they were asked to do better. They say, never mind, we're going to wipe out the decision. Now that's a little too cute, I think, that that really isn't the way I think to compensate for an error and admitted error. But I must say it doesn't fall so readily into place now five or six years later as to what the proper remedy is. At the same time, the one thing which concerns me is that the action that the agency took after apparently lots of internal turmoil. It was to say, never mind when it got going to get rid of the problem. We're going to abolish the position. Nobody ever said that the work was abolished. Nobody ever said that the person who was doing the work was moved to another position. It didn't take the work with her. It isn't really quite, I think, a straightforward appropriate way to handle a difficult situation. And I think my question for you is what, in fact, if we were starting again, should include the agency have done at that stage when Mr. Marshall said, now I really don't like what you're now offering me, whereas the initial position was filled with an income that lives were being disrupted. This is, I think, not quite the right answer. So I'm not really sure what to do about it either. But what do you think should have been done at the time? At the time when the agency admitted that it had improperly removed Mr. Marshall's name from consideration, it should have reconstructed the certificate to comply with the boards and this court's prior decisions to determine. And then basically made the decision if it still needed the position filled, who would it select, and if it would still select Mr. Marshall, it then should have paid him the difference between what he got and his G.S. 12. And what he got and the would have gotten the G.S. 13. So they thought they had a quick fix. What do we do about that? Well, the agency, I'm quite characterized as a quick fix. The agency looked at the facts in September 2008 when the board had ordered it to reconstruct the decision and said, do we still have need of this position? And may the decision that did not? They didn't say that. They didn't abolish the position. I looked at the certificate. The certificate of compliance simply says no selection is being made. It doesn't say because the position has been abolished because we don't need to work anymore. It in effect says we just don't care to fill that vacancy. The certificate of compliance was a model of brevity, I admit. It doesn't say chose not to select from the certificate and canceled vacancy announcement. That's what it says. That is correct. But this is where I would like to stress that Mr. Marshall had the opportunity to object to the agency certificate of compliance indeed in Andre's V.D.V.A. The first decision, which was 107 M.S.P.R. 455. This guy is pro-say in front of the board. So you want us to enforce strict waiver against a pro-say whose the beneficiary of preferential treatment at the command of the Congress of the United States? This court has to make many allowances for pro-say petitioners and the board does as well. However, one of those cases would be for she, V.P.R. and Kippie. However, in that case, it is an allowance for the interpretation of what they submit. However, in this case, Mr. Marshall submitted nothing. It submitted absolutely nothing. Your strongest argument is we should say he's waived the issue. That is one of the arguments in support of the December 2008 decision. The other argument in support of the December 2008 decision is that the board with the evidence it had in front of it had substantial evidence to justify a decision. The board had in a September 2008 decision had ordered the agency to remove the incumbent, to reselect or to list the three people it would consider, and then come back with the decision after how it wanted to choose to fill the position. The agency, obviously very nervous after the board had threatened this allery of the person in charge, brought back evidence that had removed the incumbent, it had then subsequently reconstituted the list, and then looking at their needs, they had decided that they know what they deserve. They said that they opted not to make the choice. There was nothing in there about we looked at our needs. Come on, you're putting words in the certificate of compliance that are distinctly not there. The agency opted not to make a choice. We don't know why. It's not indicated why, but they had the burden to explain why they didn't hire him, and they didn't explain. The board, based on the evidence it had in front of it, based on all that evidence it had that the agency had complied. Is there any evidence in front of the board that the work was no longer needed and therefore the position was being abolished? There was no evidence of that. Let me point something else out to you. The agency is asking for and what has been discussed is reconstruction, not new construction. I find it unpalatable that the agent would see, would say, four years later, after someone served in the position for two years, that they're canceling the vacancy. Reconstruction means go back and look at the facts as they existed at the time. The agency didn't cancel the announcement. The agency hired someone. She functioned in the job for two years. They moved her to the desk next door and then said they're not going to miss a new position. They hired anyone for this position. So under a reconstruction theory as opposed to a new construction theory, how is canceling the vacancy announcement possible? Well, we know they didn't cancel it. They hired. They did not cancel it in 2004. They did in fact hire Mr. Berdebri. This is 2004, the right time frame. The agency believes that it would have definitely lived in the right time frame in 2004. But based on the fact that they thought they're based on the requirements of the position in 2008, they interpreted the board to order it saying if you choose to fill the position with someone, you must submit your reasons. So we interpreted as being a present time frame. In, I believe, large, in case from the MSPB, the court actually or the board allowed consideration of a post-finding of violation event, specifically the agency had received a notification from OPM that it would not be qualified for the position. And in that, the board of held the agency's decision not to select him, even though the OPM certificate had not come in until after they had already been a viola violation found. How does that help you here? Well, it shows that post-vioa bond. No one is saying this guy is incompetent. He couldn't do the work. He fraudulently misrepresented his credentials. His suitability to do the functions of the position are not challenged. That's correct. Then what relevance does it have that in some other case that turned out the person wasn't competent to do the work? What has relevance to the extent that it shows that a post-vioa violation find event that happens after the finding can in fact have some relevance in the determination. Yeah, but there aren't any such facts in this case. So why do we care that in another case with different facts, you might get a different outcome? Well, the fact that I'm trying to draw an analogy to is the fact that the board that the agency opted not to make a selection. Obviously, you prefer that there be more of it. What assurance can you give us that the agency wasn't just livid with the sky who had made so much trouble for him? Well, we'll fix him. We'll just not fill the job, but he'll get nothing. What assurance can you give us that that's not what really happened here? Other than the presumption that federal employees generally act in good faith, there is nothing in the record. But you're waving the government would argue it is good faith that you are perfectly entitled to cancel the vacancy announcement because you don't want to hire a particular individual. Absolutely. You've argued that in other cases to us. Right? So you wouldn't necessarily even think that it's bad faith to do that. Right. That is absolutely correct. I interpreted Chief Judge Michelle's argument or a question as what evidence is there in the record that it was not the decision to cancel was not simply made out of spite. And my response to that is that one, there has been no evidence of spite prior to that. There's no evidence at all that it wasn't doubt of spite. There's no evidence in the record that the end, the circumstantial evidence would certainly suggest it was out of spite. The incredulty with which this panel confronts you doesn't give you that impression. To the extent that the Mr. Marshall challenges that the why, the agency made that selection, he had his opportunity to say something, to say anything as the board noted in his December, 2008 decisions. That's just back to waiver. If we agree with you on waiver, the case is over. But we might not agree with you on waiver for a pro-set. Right. So is this position still exists today? It is not filled. I'm not sure. Is it exists? I'm not sure. You had discussions with agency council. I have. About this position, they said that this obviously is not in the record, but without waiving an attorney claim privilege. They have said that they have no intention to fill it right now. Why not? What's going on without waiving any privilege or anything like that with discussions? They said they simply do not need that budget analyst position. Because Miss Rosario, is that her name Miss Rosario? She's already doing the job in a newly created different position than they moved her into. She was actually moved into a part of HHS with deals with panor terrorism. So I do not believe that she is as close to- You didn't just transfer all the work over. No, that is not my impression from what the agency has told me. Miss Beach has been transferred over to another position. The board has, believe in the second decision in weed, the second board decision in weed, how it is not in fact required to in fact totally fire the incumbent from service, is simply required to remove them from the position. Mr. Dooley isn't asking that Miss Beach be fired. He's just asking that there be some compensation or effort to make whole his client. Yes. You're saying no. We're not going to make him whole because we don't have to. We were saying that we have complied with the board's decisions. The board's order, with the November 2007 decision that said, while you have it conceded that you violated VO by removing his name from the list, we're not going to make a determination as to the amount of damages until we get the reconstruction. We believe that that decision was correct. In as much as it reversed the May 2000s, 7th decision from the administrative judge. But in this case, doesn't reconstruction mean add Marshall's name back in as the number one guy on the list of three or more? Reconstruction in this case means that they definitely have to consider who they were going to who is available position and based on... Who's available for the position now or who applied the position? The agency reconstruction base that was available for the position in 2004. So they have to put him back on the list? Yes they do. And because of their prior evaluation, he goes back on the list as the number one candidate of a array of candidates. I believe that is how he was ranked on the certificate. So you're not arguing that the agency made in the course of all this to offer in the GS13 position was adequate? As much as I regret it, I did not present that in the briefs. It was presented before the board many times. But the board made a fact finding that it wasn't a comparable job. How do we dispute that? And if there is an obligation to make him whole, offering him a job as a janitor, a GS5 is not going to make him whole. And I realize that may not have been the offer, but the bottom line is if there's a fact finding it's not comparable, kind of hamstrung there. That is correct. The employer is Jim, because if we're talking about pay differential, the pay, then he was offered the higher pay and job. He was offered the exact same pay in the exact same location and they're trying to make it a budget analyst as close as they could come. Because what you're not arguing that anymore? I would like to, yes, but admit that I've not put it in the briefs. So the answer is no, I'm not arguing that. Sadly, yes. If I could just briefly turn to the issue of willfulness, the government believes that this issue is not probably before this court. The May 2007. I don't think there's any dispute that the issue of willfulness is not before us at this time. Well, we believe that there's already been a decision on willfulness that should be affirmed. That the May 2007 decision looked at all the factors and said no, it was an honest mistake to remove his name from consideration. And that was the determination. So we don't speak to willfulness. It's not really an appeal to us right now, is it? I see that my time has expired, may I continue? Yes. I'll thank you. We believe that the extent willfulness was an issue, but because it was not an issue in the May 2007 and the New Jewish decide that there was no willfulness. Then the only time it's been raised again is as far as I can tell is in the final sentence of the opening brief where he says, well, I want a remanial willfulness. However, this doesn't really provide that and provide the court with any self-record citations or any case authority, especially invoking the requisites for a guard center that has been used in some of the board decisions as to why the May 2007 decision finding no willfulness. That sounds like what you're saying is his argument is we reject it. But the question was whether it's before us. You said no, it's not before us. Now, which is it? Is it before us as a weak argument or is it not properly before us at all? I would argue that it is a weak argument. And number two, it is not probably before us at all because arguments which are not presented with market citations are waived. I'm looking back now and I see that the MSPB and one of the many iterations of this case earlier on vacated that portion of the initial decision that decided willfulness when it ordered reconstruction rather than reinstatement. And explicitly contemplated that liquidated damages might still be available. That's what I understand from the MSPB. I'm not quoting verbatim. But I understood that that decision was vacated. I mean, I realized there's a lot to keep track of here in terms of how many decisions occurred here. But I don't think that they're precluded from willfulness later on based on that. I don't think it's before us either. Okay. Right. Time has expired. Thank you very much. Mr. Dewey, two minutes of rebuttal. Just briefly on willfulness. Again, I can certainly concede it's not before the court. I'm just trying to avoid a misunderstanding and the interpretation by the board of a remand order just to be clear that there's nothing in the court's decision that precludes Mr. Marshall from reviewing the sub-region. I think we understand the opportunity you're trying to preserve. And I think my regret, Judge Moore, is I didn't think of the term new construction as a good way to describe what's going on at the board. And I think it's important to see this case in terms of not just Mr. Marshall's situation, but Andres, Dow, Weed, Williams, and others. All these cases that involve VEOA reconstructions have all involved this new construction. We are no longer looking backward at what happened at the time of the violation. We're doing a fictitious exercise in which the agency gets to decide what history, what history books, how they read. Tell me because I don't think I understand what is it you characterize sort of what you interpreted my thoughts on this case to be sort of a narrow holding that would benefit Mr. Marshall, but you were asking for something broader. And I guess I don't fully appreciate what that broader thing is. Everything should be done in 120 days at all possible. Reconstruction is almost certainly going to go a lot longer than that. In all of the cases I mentioned, if you go from the reconstruction order to the final decision of the board, at least 18 months. Congress meant for this to all to be done, the entire case at the board to be done in four months. And so my hope, Mr. Marshall, strong hope, is that the court will put a stop to this. Everything should be done in the initial proceedings before the administrative judge, if at all possible. Recognizer could be some cases merit promotion certificates come to mind where it could be the reconstruction. But I don't understand what is it you're asking us to do? You wanted all done in 120 days. And so we should rule that it's not done in 120 days. Every veteran who doesn't get their final say by that point gets what? A million dollars? I mean what happened? What is the magic solution? Well, the Congress already provided an opt out to this district court. So I'm hoping that the federal circuit will give guidance to the board that it should not let this go beyond. I mean, I don't know that there's necessarily a remedy. So you just want a one-liner speed up? What, I mean? To put it bluntly, sure, something that says that don't let it go beyond, don't do remands that are unnecessary that could have been dealt with in the initial proceedings before the A.J. Because if there is any lack of an indication like that from this court, the status quo will continue. We'll have veterans waiting years to seek redress for jobs they applied for years prior. We'll have all the problems that you would outline with Judge Moore in Perkondon. And of course, that was from the government perspective, and it's even worse from the perspective of a disabled veteran applying for a federal job. Thank you. We thank both the council. The appeal is taken under advisement