[00:00:00] Speaker 02: Case for argument today is 20-1447, Venaris versus the Army. [00:00:07] Speaker 02: Ms. [00:00:08] Speaker 02: Cannon, please proceed. [00:00:11] Speaker 03: Thank you, ma'am. [00:00:12] Speaker 03: May it please the court, my name is Sherry Cannon, and I represent the petitioner, Mark Venaris. [00:00:18] Speaker 03: We are here today on appeal from the MSPB Administrative Judge's decision that the agency's denial of Mr. Venaris' benefit [00:00:28] Speaker 03: for allowance for his housing was not a violation of USERA, the LQA. [00:00:33] Speaker 03: We appealed that decision because it is wrong on the law and ignores DOD guidance in existence at the time the decision was made and something that the AJ also ignored. [00:00:44] Speaker 03: Ignoring the policies also constituted harmful procedural error both by the agency and the administrative judge. [00:00:51] Speaker 03: When the agency ignored guidance from 2013, [00:00:54] Speaker 03: which is consistent with and supplements the State Department's DSRR regulations and ignores the fact that USERA protected Mr. Venteris while he was on military orders in 2016 and 2017, essentially requiring the agency to treat him like all others. [00:01:12] Speaker 04: Can I interrupt for just a moment? [00:01:15] Speaker 04: This is Judge Bryson. [00:01:16] Speaker 04: Do you agree with the government that DSSR sections 031.11 and 031.12 are the governing sources of the decision in this case? [00:01:32] Speaker 03: Partly. [00:01:33] Speaker 03: We believe that you need to look at that before you look at the DOD supplements that actually work well and work together with that DSSR. [00:01:41] Speaker 03: We believe that the [00:01:43] Speaker 03: the 31.12 has been misapplied here and that he had continuous service and that it actually does apply to him and he meets the qualifications of that. [00:01:53] Speaker 04: I understand the argument, but if we were to conclude, for example, that if we were to disagree with you and conclude that 31.12 does not apply here, would that indicate? [00:02:09] Speaker 03: No, because if 31-12 does not apply, what does apply would be the DOD guidance in effect at the time. [00:02:19] Speaker 04: Maybe I wasn't clear when saying it doesn't apply. [00:02:21] Speaker 04: I mean, if it applied, but if one were to conclude from 31-12 that Mr. Venaris was not entitled to a living quarter adjustment or allowance, [00:02:37] Speaker 04: That would be the end of the case, right? [00:02:41] Speaker 03: I don't believe so. [00:02:41] Speaker 03: The case was premised originally, sir, on a violation of USERRA, which is obviously the reason for us being in the MSPD in here today to start with. [00:02:56] Speaker 03: But also when you review the record that we have here, which unfortunately does not include a transcript of the hearing, [00:03:03] Speaker 03: The issue of the continuous service came up in the hearing and was briefly discussed, and I believe if you look at it in context, it supports our harmful error argument, that that is where it goes to the harmful error argument, not necessarily to the use error argument. [00:03:24] Speaker 03: Okay. [00:03:24] Speaker 03: So I will continue. [00:03:27] Speaker 03: Yes. [00:03:27] Speaker 03: The first three issues on appeal are whether the agency's decision to deny the LQA violated USERA, in that its military service was a substantial or otherwise motivating factor in its decision. [00:03:39] Speaker 03: Did the agency commit harmful error when it failed to follow the DODI via policy pronouncements of 2013 and other DOD guidance, and particularly the Hinkle-Bowles memo and attached guidance? [00:03:50] Speaker 03: That service cannot be taken into account when making an LQA determination. [00:03:55] Speaker 03: and was uniformed services substantial or motivating factor in the AJ's decision. [00:03:59] Speaker 03: Those three arguments go hand in hand and I believe the judge just discussed that. [00:04:07] Speaker 03: The last argument was there prejudice when the hearing was not reported by the presiding judge. [00:04:12] Speaker 03: If I have time to get to it, I will, but it's quite clear from looking at the record, the judge, the administrative judge with respect to that in his opinion doesn't do a lot of legal analysis of anything that we have raised on appeal. [00:04:24] Speaker 03: but instead uses a lot of words like this person recollects or this person remembers. [00:04:30] Speaker 03: There's not a lot of this person testified to. [00:04:32] Speaker 03: There's no credibility findings on the record which the agency tries to bring up on appeal. [00:04:40] Speaker 03: So we believe there was, there is prejudice to us and for the court in trying to make a determination on the record here absent testimony, absent testimony in this case. [00:04:52] Speaker 03: If you were right about that, the issue of prejudice, what would be the remedy? [00:05:01] Speaker 03: I assume a remand to have this. [00:05:04] Speaker 03: Do you have a new hearing? [00:05:10] Speaker 04: Yes. [00:05:11] Speaker 04: At such a new hearing, what would you present that was not available that would have changed the outcome? [00:05:19] Speaker 04: What evidence would you think? [00:05:22] Speaker 04: we should have before us in transcript form that is not available now? [00:05:30] Speaker 04: Well, two things. [00:05:31] Speaker 03: First, the entire discussion of the military service as a continuation of the civilian service under the DSSR is nowhere in the record. [00:05:45] Speaker 03: So that would need to be more fully explored and actually in the record. [00:05:48] Speaker 03: There is no record, in this case, [00:05:52] Speaker 03: It is unfortunate, but I would suggest that there is no such thing as the 2018 do-over policy by Wilkie that Ms. [00:06:05] Speaker 03: Keller testified to because there's an absence in the record at all of any documentation to support that. [00:06:12] Speaker 03: That would need to be, in my view, made clearer. [00:06:15] Speaker 03: I was not the trial counsel. [00:06:17] Speaker 03: in this case, but that is my view that that could be made more clear for this panel and for the administrative judge. [00:06:24] Speaker 02: Okay. [00:06:24] Speaker 02: Judge Moore, are you suggesting that a new hearing you would make it clearer or are you suggesting at the prior hearing these arguments were in fact made and because we don't have the hearing record, we don't have access to them? [00:06:41] Speaker 03: With respect to the first issue of the continuous service and the DSSR argument, that was discussed, but is nowhere in a record that you can review. [00:06:53] Speaker 02: But with regard to the second issue you brought up, you just want to sort of be the beneficiary of a new hearing. [00:07:01] Speaker 02: You want to raise an argument that wasn't raised, undisputedly sort of wasn't raised in the first argument. [00:07:08] Speaker 03: No, but it was raised. [00:07:09] Speaker 03: The agency argues, by the agency, the agency argues without any documentary or other support, Ms. [00:07:16] Speaker 03: Keller testified that they applied a 2018 policy to this particular transaction. [00:07:25] Speaker 03: The judge basically doesn't address that at all in his decision. [00:07:30] Speaker 03: And we believe that's error that to apply a 2018 policy to a 2016, [00:07:37] Speaker 03: a request that was made in 2016 and 2017 because the applicable policies enforced at the time were also ignored. [00:07:45] Speaker 03: I just think it needs to be more clear on the record that that's what the agency was arguing, and it's what they're arguing now. [00:07:56] Speaker 04: On the fifth issue we are... I'm sorry, Ms. [00:07:59] Speaker 04: Cannon. [00:08:00] Speaker 04: In situations in which a transcript is lost and it occurs with moderate frequency, [00:08:07] Speaker 04: One recourse that parties often employ is to prepare an affidavit summarizing what was in the hearing with respect to issues that they regard as being important. [00:08:21] Speaker 04: Was that done here? [00:08:23] Speaker 03: Not by either party, sir. [00:08:25] Speaker 04: Okay. [00:08:28] Speaker 03: Go ahead. [00:08:29] Speaker 03: Okay, I'm sorry. [00:08:30] Speaker 03: So for the purposes of the first three issues, [00:08:34] Speaker 03: We note that being called to duty in the exact same position, in the exact same chair, doing the exact same duties, was not Mr. Venaris' choice. [00:08:47] Speaker 03: He was called to active duty as a gap filler, meaning they didn't have another civilian to take his position when his term expired. [00:08:55] Speaker 03: This was not something where he resigned to find his happiness elsewhere. [00:08:59] Speaker 03: His term expired as a federal employee and was not allowed by federal regulation or statute to stay in that job. [00:09:07] Speaker 03: The agency itself filled that stopgap measure by ordering him to duty. [00:09:12] Speaker 03: It is irrelevant in our view that he's a Marine Reservist. [00:09:15] Speaker 03: He could have been an Air Force Reservist, an Army Reservist, a Coast Guard Reservist. [00:09:19] Speaker 03: It doesn't matter. [00:09:20] Speaker 03: He was ordered to duty by the Army and continuously served in the same exact role [00:09:27] Speaker 03: for a period of time prior to accepting a position, another army position, as a civilian. [00:09:33] Speaker 03: And that has been completely overlooked by the judge, and it's not apparent in the record. [00:09:43] Speaker 03: But we believe on the law you could rule if you find such, because there is a record of what Mr. Benares testified to about the sequence events, as well as Ms. [00:09:53] Speaker 03: Keller testifying to the sequence events that occurred. [00:09:57] Speaker 02: At all times... Council, I just want to point out, Council, you're using your rebuttal time, which you're welcome to do if you wish. [00:10:08] Speaker 03: I will for a couple more seconds and then I will turn the tables over. [00:10:14] Speaker 03: At all times relied upon by the agency to deny [00:10:18] Speaker 03: denied Mr. Benner. [00:10:19] Speaker 03: He was on orders that intervened to stop his move home, which by all accounts and which is undisputed was all set to go forward with transportation costs allowed by law, and his civilian transportation orders were ready to go. [00:10:32] Speaker 03: The court has opined, as have others, that Usara is to be liberal and construed to the benefit of the military member. [00:10:39] Speaker 03: Here is the fact that he was supposed to be protected during his military time, a time in which he was not a volunteer, [00:10:46] Speaker 03: and his rights as a civilian should have been protected and it was not. [00:10:51] Speaker 03: The agency itself did that by continuing to provide LQA during his reserve time in all times after he served as a reservist. [00:11:01] Speaker 03: So he had continuous service in that same job in the exact same chair and continued to get LQA as a reservist based on his U.S. [00:11:10] Speaker 03: higher status. [00:11:12] Speaker 03: That is consistent, consistent not only with the DSSR, [00:11:16] Speaker 03: but DOD policy, the DODI, and the Hinkle Bulls memo. [00:11:20] Speaker 03: The agency, in essence, treated him the same as if he was still a U.S. [00:11:25] Speaker 03: hire during his period of reserve time and did a bout phase during the civilian service that we're talking about for periods of time in his new job. [00:11:37] Speaker 03: The judge didn't make any note of this anywhere in his decision. [00:11:42] Speaker 03: There's no analysis of this. [00:11:44] Speaker 03: And the opinion itself doesn't discuss any governing law and any great depth about the policies at issue that the agency ignores. [00:11:53] Speaker 03: But finally, we believe it's pretty obvious. [00:11:56] Speaker 03: The judge used the military orders to deny the USERA claim. [00:12:00] Speaker 03: He essentially, like in Erickson's, used the military orders, which he couldn't refuse, to show his lack of entitlement to a benefit. [00:12:08] Speaker 03: using the theory that the documents are a record of the service and that the service underlying the documents are not at issue or not important. [00:12:15] Speaker 03: We completely disagree with this and we believe it falls in line with Erickson where the gentleman was absent from duty and the Postal Service fired him and the court says you can't look at the absent from duty. [00:12:26] Speaker 03: You have to look at the reason he was absent from duty. [00:12:30] Speaker 03: And we believe despite the agency's arguments to the contrary that this is an analogous situation and I cede my time. [00:12:38] Speaker 02: Okay, let's hear from the first in council. [00:12:45] Speaker 01: Thank you, Your Honor. [00:12:46] Speaker 01: Robert Capura on behalf of the Army and may it please the court. [00:12:51] Speaker 01: The sole question before the court today is whether the Merit Systems Protection Board aired when it affirmed the Army's denial of LQA to Mr. Venaris. [00:13:01] Speaker 01: Substantial evidence in the record establishes that it did not. [00:13:05] Speaker 01: Specifically, the evidence in the record demonstrates that the Army did not inappropriately consider Mr. Venaris' reserve military service in its determination to deny the LQA. [00:13:18] Speaker 04: Mr. Kupfer, this is Judge Bryson. [00:13:20] Speaker 04: Let me ask you a question about the scope of the MSP's jurisdiction in a case like this. [00:13:28] Speaker 04: I mean, we know that the MSPB has jurisdiction over the USERRA claim. [00:13:33] Speaker 04: But does it also have jurisdiction to decide the underlying regulatory issue? [00:13:41] Speaker 04: And what I mean by that is this. [00:13:43] Speaker 04: Suppose that we were to conclude that USERA was not violated in as much as there was no prejudice, there was no discrimination against Mr. Venaris based on his military service. [00:14:03] Speaker 04: that the agency misapplied the pertinent regulations and that under a proper application of those regulations, he and other people like him who do not have a USERRA claim would be given the benefit. [00:14:22] Speaker 04: Does the MSPB have the jurisdiction not only to decide the USERRA issue but also to decide the, what otherwise would be an APA type issue [00:14:32] Speaker 04: whether the regulation has been violated in a particular case. [00:14:37] Speaker 01: Well, Your Honor, that question was not raised. [00:14:41] Speaker 04: I'm interested because it's not inconceivable that one could conclude that the regulation was violated but not in a way that was discriminatory based on military service. [00:14:59] Speaker 01: Well, Your Honor, if the question had been raised to the board, yes, it's possible they could have reached that issue as to whether or not the regulation was appropriately applied. [00:15:18] Speaker 01: However, in this case, as I mentioned, that wasn't the question that was raised. [00:15:25] Speaker 01: It was whether or not [00:15:27] Speaker 01: the military service impacted the denial of the LQA. [00:15:38] Speaker 01: So I wouldn't go so far as to say that it's outside the scope of the board's jurisdiction. [00:15:43] Speaker 01: I would just simply state that it's outside the scope of this case. [00:15:49] Speaker 01: Okay. [00:15:50] Speaker 01: And with regard to that, the two key issues [00:15:56] Speaker 01: that support the board's finding is that, first and foremost, the dispositive fact is undisputed, that at the time Mr. Venaris was called to his reserve duty in June 2016, he was physically residing in Germany. [00:16:14] Speaker 01: This is established in the record both by his reserve orders, which are in the appendix of 214, and also by his discharge papers, which are in the appendix of page 91. [00:16:27] Speaker 01: Both of them show that he was living in Olsen-Gestät, Germany, and the record further establishes that he had been there for the length of that reserve term position. [00:16:42] Speaker 01: Going beyond that, there's this issue that's been raised of what Mr. Benares would have done had he not been called to military service. [00:16:56] Speaker 01: As we discussed in our briefing, you know, this is a hypothetical scenario. [00:17:01] Speaker 01: And, you know, just to briefly respond to one point that was made by counsel, our briefing never questioned the credibility of Mr. Benares' testimony. [00:17:14] Speaker 01: Rather, we simply state that as a hypothetical scenario, it's impossible to know what would have happened [00:17:23] Speaker 01: had he not gone on military orders. [00:17:28] Speaker 01: But even going beyond that, and there's one point that I would like to clear up, both before the board and in our, and we reference this argument in our briefing to the court, the Army asserted that if we take that hypothetical scenario where Mr. Venaris had not been called on reserve orders, [00:17:51] Speaker 01: and had returned to the United States. [00:17:54] Speaker 01: Even in that scenario, he would not have been eligible for a living quarters allowance. [00:18:01] Speaker 01: That is correct, and it's established by evidence in the record. [00:18:06] Speaker 01: One point I would like to clear up is that the government stated that he would have needed to return to the United States for 180 days. [00:18:16] Speaker 01: The applicable regulation that was actually in force at the time [00:18:21] Speaker 01: is actually less lenient than that. [00:18:24] Speaker 01: In the record at page 265, the applicable regulation states that, in fact, he would have had to have returned to the United States for a full year in order to... So, counsel, to fast-forward your argument, do I understand that what you're saying is that you can't ultimately find there was any prejudice, even if [00:18:47] Speaker 02: the judge had based a decision in part on military service or military records because the same result would have applied had he returned and never been called up on active duty to begin with. [00:19:01] Speaker 01: That's correct, Your Honor. [00:19:02] Speaker 01: That's part of our argument. [00:19:03] Speaker 01: Yes. [00:19:04] Speaker 00: Mr. Capurro, this is Judge Shen. [00:19:08] Speaker 00: You're saying that if he had been hired in 2017 after having [00:19:16] Speaker 00: I don't know, been living back at his original home residence in Illinois after his 2016 job ended in Stuttgart. [00:19:29] Speaker 00: He wouldn't have qualified under this regulation requirement of needing to be back in the United States for a year? [00:19:38] Speaker 01: Your Honor, he would have had to have returned to the United States [00:19:43] Speaker 01: and permanently resided there for a full year, that's correct. [00:19:48] Speaker 00: Right, so I don't recall the precise facts here, but just on the precise facts here, are you saying that he would not have been able to have been present and residing in the United States for a full year on these facts? [00:20:04] Speaker 01: Yes, that's correct, Your Honor. [00:20:06] Speaker 01: In the appendix at page 237, it shows that [00:20:11] Speaker 01: the job that he eventually went into, which we refer to as the interagency job, that posting didn't go up until August of 2016. [00:20:23] Speaker 01: So he leaves the term position in June of 2016. [00:20:28] Speaker 01: The job posting for the interagency position goes up on August 8th. [00:20:35] Speaker 01: And the record shows that he accepted that position [00:20:41] Speaker 01: in September of 2016. [00:20:42] Speaker 01: So from his departure from the term position to the acceptance of the interagency position was just a couple days over three months, from June to September. [00:20:57] Speaker 01: And he started in 2017, right? [00:21:02] Speaker 01: Yes, he eventually entered into the position, into the position in April of 2017, I believe. [00:21:10] Speaker 01: But the regulation which would have controlled in the hypothetical scenario where he returned to the United States, it's Army in Europe Regulation 690-500.592. [00:21:24] Speaker 01: And as I mentioned, it's in the record. [00:21:28] Speaker 01: And at page 265, paragraph 7A1 states, and I'm quoting, [00:21:35] Speaker 01: Employees who previously vacate an outside United States civilian or contractor position must have resided permanently in the United States for at least one year immediately before accepting the formal job offer." [00:21:49] Speaker 01: Unquote. [00:21:50] Speaker 01: So the time... Go ahead. [00:21:53] Speaker 01: I'm sorry. [00:21:54] Speaker 01: Go ahead. [00:21:54] Speaker 01: No, all I was going to say, Your Honor, was that therefore the regulation states that the key time period there is accepting the formal [00:22:04] Speaker 01: job offer. [00:22:05] Speaker 01: Mr. Venaris in his application for LQA at page 228 of the record states that he was offered the interagency position on September 21st, 2016, and he put in his application for LQA on September 22nd, the very next day. [00:22:26] Speaker 01: So again, there was just over three months from when he left the civilian term position [00:22:32] Speaker 01: to when he accepted the formal job offer. [00:22:37] Speaker 04: Let me see if I understand, and I'm a little confused by one of the applicable regulations here. [00:22:43] Speaker 04: I think it's O3112B of the State Department regulations. [00:22:49] Speaker 04: Suppose that he had taken the four-year job with the civilian agency, and then that arrangement had with it a one-year [00:23:02] Speaker 04: company option in which the company decided to exercise. [00:23:08] Speaker 04: So he spent the fifth year with the same operation, the same agency that he spent the earlier four years. [00:23:17] Speaker 04: And then he took the job that he later sought LQA for. [00:23:25] Speaker 04: Under 3112B, would he in that situation [00:23:31] Speaker 04: be eligible because he had been recruited for the first job in the United States and the job with the second civilian agency was his second job? [00:23:47] Speaker 01: Generally, yes, Your Honor. [00:23:48] Speaker 04: The way I understand your hypothetical is essentially you're saying that... Instead of going to the Marines, he basically stayed with the first job through five years and then immediately transferred to the second job. [00:24:01] Speaker 01: Possibly, Your Honor. [00:24:05] Speaker 01: There is some indication in the record that it was questionable whether or not the LQA that he had been granted for the term position was appropriately granted. [00:24:18] Speaker 01: But beyond that, the general hypothetical where someone is recruited from the United States is serving overseas and then moves directly from that position [00:24:30] Speaker 01: applies for, accepts, and then moves directly into another overseas position, yes, 3112 would grant it in that situation. [00:24:41] Speaker 04: Okay, that's very clear. [00:24:42] Speaker 04: Thank you. [00:24:43] Speaker 01: Yes. [00:24:43] Speaker 01: However, the distinction that I would make here is that while we've been engaging in this hypothetical discussion based on the assertions made by Mr. Venaris, the record establishes that there was no way for that to happen [00:25:00] Speaker 01: because the term position terminated in June 2016. [00:25:03] Speaker 01: So regardless of whether he was called to military service, again, he would not have been able to return to the United States for a longer period of time, for a sufficient period of time. [00:25:18] Speaker 01: But looking back at the State Department regulation, which controls in this case, [00:25:25] Speaker 01: The reason why the Army in fact applied this regulation based on the facts of the record, as they actually are, is that 3112 does provide a path for an individual who is serving overseas, not of their own accord. [00:25:44] Speaker 01: In other words, someone who may have been called on military orders, it offers them that path to qualify for LQS. [00:25:54] Speaker 01: The reason why Mr. Venaris didn't qualify is that when he was called to military service, he was in fact living in Germany of his own accord. [00:26:04] Speaker 01: He applied for the civilian position in Germany. [00:26:08] Speaker 01: That was his choice. [00:26:09] Speaker 01: So in that sense, he was there voluntarily as he accepted that position and worked in the position and then was called to military duty [00:26:20] Speaker 01: from his residence in Germany, not the United States. [00:26:25] Speaker 01: So going back to a question, Judge Bryson, that you asked to opposing counsel, yes, the Department of State Regulation 03-112 does control and its application to the facts and the record essentially end the inquiry because [00:26:46] Speaker 01: The question was not, where was he for his military service? [00:26:51] Speaker 01: The question is, where was he prior to his military service? [00:26:55] Speaker 01: And the record shows that he was in Germany. [00:27:00] Speaker 01: And if... Oh, go ahead, Your Honor. [00:27:03] Speaker 01: I'm sorry. [00:27:03] Speaker 02: No, I'm sorry. [00:27:04] Speaker 02: I thought you had concluded. [00:27:06] Speaker 01: Yes, Your Honor. [00:27:07] Speaker 01: If the court has no further questions, I will conclude at this point. [00:27:10] Speaker 02: Okay. [00:27:11] Speaker 02: Ms. [00:27:11] Speaker 02: Cannon, how much remaining rebuttal time does she have? [00:27:15] Speaker 00: Judge Moore, she has just under three minutes. [00:27:17] Speaker 02: Okay. [00:27:17] Speaker 02: Please proceed, Ms. [00:27:18] Speaker 02: Cannon. [00:27:19] Speaker 03: I will try not to talk too fast. [00:27:22] Speaker 03: One of the things I would like to address is this question of whether the initial granting of the LQA is questionable. [00:27:31] Speaker 03: That's completely irrelevant and a red herring. [00:27:34] Speaker 03: He was given LQA. [00:27:35] Speaker 03: The record reflects he was given LQA. [00:27:38] Speaker 03: And if the agency made a mistake, which we don't concede that it did, [00:27:42] Speaker 03: Four years earlier, it's just not relevant to what you have to look at here. [00:27:46] Speaker 03: I believe the agency is off on it in a universe that we're not off on with respect to what is hypothetical. [00:27:54] Speaker 03: If Mr. Venaris had not been called to active duty in his same exact job, he did not have a choice but to go home. [00:28:04] Speaker 03: The record is clear what would have happened to him. [00:28:06] Speaker 03: The status of force's agreement required him to return home. [00:28:10] Speaker 03: He had a transportation agreement that was valid. [00:28:13] Speaker 03: He had orders that would have allowed his physical, his postal goods, and himself to be transported at the agency's expense home. [00:28:21] Speaker 03: All of that. [00:28:21] Speaker 03: So he actually required to go home? [00:28:23] Speaker 04: I mean, he could have gone to Zanzibar, right? [00:28:26] Speaker 03: He could have, but he couldn't stay in Germany absent taking an intervening action, which he hadn't taken. [00:28:33] Speaker 03: All right. [00:28:35] Speaker 03: OK. [00:28:36] Speaker 03: So we don't believe [00:28:38] Speaker 03: that the question of whether he had to go home is a hypothetical or not. [00:28:42] Speaker 03: His testimony is not hypothetical. [00:28:44] Speaker 03: It is actual. [00:28:44] Speaker 03: He took all reasonable steps to at the termination of his term appointment to go back to the United States. [00:28:51] Speaker 03: And the only reason he didn't is because the agency called him to active duty. [00:28:57] Speaker 03: So the other question I'd like to address is the agency policies in effect here say to treat him as a deployed reservist [00:29:07] Speaker 03: as if it had never happened. [00:29:10] Speaker 03: And this goes to one of your questions about the continuous employment. [00:29:15] Speaker 03: And it shows there's USERA discrimination here. [00:29:18] Speaker 03: That goes right to the point. [00:29:19] Speaker 03: If he had been, for some reason, able to extend his term appointment for a year, there is no question that he would have gotten LQA that year. [00:29:27] Speaker 03: There's also no question that the agency granted him that LQA as if he was a US hire for the time he was on [00:29:37] Speaker 03: the reserve duty. [00:29:38] Speaker 03: That is in the record. [00:29:41] Speaker 03: And to the extent it's not, because the testimony is excluded from the judge's decision, it's prejudicial. [00:29:47] Speaker 03: Keller noted in her testimony, and the administrative judge acknowledged, reserve military duty does not alter his US higher status. [00:29:56] Speaker 03: That is exactly what we're arguing, that when he went on reserve duty, it certainly did alter his US higher status, which was impermissible. [00:30:05] Speaker 03: Basically, the one-plus years he was on reserve duty should have been treated just exactly as the court has suggested, which was a continuation of the job he was doing before and constituted substantially continuous employment under 31.12 and the supplemental guidance that was in effect that you go to thereafter, which is you have to ignore, for lack of a better word, you need to ignore the fact [00:30:33] Speaker 03: that these were military orders. [00:30:35] Speaker 03: You can't take that into effect when determining a U.S. [00:30:38] Speaker 03: higher status. [00:30:39] Speaker 03: And the five continuous plus, five plus continuous years, he was entitled to U.S. [00:30:44] Speaker 03: higher status. [00:30:44] Speaker 03: And I believe the United, the administrative judge acknowledges that in his decision, which he then completely takes nowhere. [00:30:54] Speaker 02: Okay, Ms. [00:30:54] Speaker 02: Cannon, I'm sorry, but your time is up. [00:30:56] Speaker 02: That concludes our arguments for today. [00:30:58] Speaker 02: In this case, this case is taken under submission.