[00:00:11] Speaker 01:
Our third case this morning is number 15-3154 Fitzgerald versus DHS.

[00:00:32] Speaker 01:
Mr. Herman.

[00:00:34] Speaker 02:
Good morning.

[00:00:34] Speaker 02:
May it please the court?

[00:00:36] Speaker 02:
The issue in this case is whether the enhanced benefits under the first

[00:00:41] Speaker 02:
apply to a former customs inspector who's currently employed as a law enforcement instructor in the Department of Homeland Security.

[00:00:51] Speaker 02:
The facts really aren't in dispute.

[00:00:53] Speaker 02:
The petitioner worked for more than a dozen years in a primary covered position under the statute.

[00:00:59] Speaker 02:
She worked as an immigration inspector in the INS department, and she worked as a customs inspector in the Department of Treasury.

[00:01:07] Speaker 02:
She then was promoted.

[00:01:08] Speaker 01:
and transferred to FLETC.

[00:01:10] Speaker 01:
The basic question here is whether the regulation is consistent with the statute.

[00:01:16] Speaker 01:
Is that the focus?

[00:01:17] Speaker 01:
That's correct, Your Honor.

[00:01:19] Speaker 01:
So why isn't the regulation a reasonable interpretation of the statute?

[00:01:24] Speaker 02:
We believe the petitioner meets the express language of the statute.

[00:01:29] Speaker 02:
She worked indisputably in a primary covered position for more than three years.

[00:01:34] Speaker 02:
In fact, she worked there for 12 years.

[00:01:36] Speaker 02:
then she was transferred to an administrative position in the FLETC where it's indisputed that that's also a secondary covered position for law enforcement officers.

[00:01:51] Speaker 02:
So both her primary position and her secondary position meet the statutory definitions.

[00:01:58] Speaker 02:
The regulations that have implemented those statutes insert an additional requirement

[00:02:04] Speaker 02:
that it not only has to be within the Department of Homeland Security, the secondary position, but it has to be within effectively a sub-agency.

[00:02:13] Speaker 02:
It has to be within the CBP, the Customs and Border Protection Agency.

[00:02:17] Speaker 02:
That appears nowhere in the statute.

[00:02:19] Speaker 02:
And in fact, we think the legislative history contradicts that interpretation.

[00:02:23] Speaker 00:
The legislative history- Well, it doesn't have to be within CBP.

[00:02:27] Speaker 00:
It has to be either be a supervisor in an administrative position that

[00:02:31] Speaker 00:
that supervises those officers or one that requires experience as being one of those officers?

[00:02:38] Speaker 02:
I think that's a reasonable interpretation.

[00:02:41] Speaker 02:
What the agency did here is the interpretation constricted was much more narrow, we believe.

[00:02:47] Speaker 02:
What do you think the definition of the statute means?

[00:02:52] Speaker 02:
The supervisory or administrative position, we don't think the regulations define that.

[00:02:59] Speaker 00:
No, I'm not asking what the regulations do.

[00:03:02] Speaker 00:
I'm asking what's your view of that statutory?

[00:03:04] Speaker 00:
What does that statute say?

[00:03:07] Speaker 02:
The position is that a supervisory or administrative position within the Department of Homeland Security, the secondary... Are there any limitations on that?

[00:03:21] Speaker 02:
We believe that the limitation is that it has to be a secondary covered position, which

[00:03:28] Speaker 02:
this position that Miss Fitzgerald has undoubtedly is for law enforcement officers.

[00:03:33] Speaker 00:
Let's back up.

[00:03:34] Speaker 00:
So you agree that it can't be any supervisory administrative position in the Department of Homeland Security, right?

[00:03:40] Speaker 00:
Correct.

[00:03:40] Speaker 00:
So it's ambiguous.

[00:03:42] Speaker 02:
We don't believe that the implementing regulations... Wait, wait.

[00:03:47] Speaker 00:
Answer my question.

[00:03:47] Speaker 00:
Is it plain on its face or is it ambiguous?

[00:03:50] Speaker 02:
We believe it's plain on its face.

[00:03:52] Speaker 02:
We believe the statutory language is plain on its face.

[00:03:55] Speaker 00:
plainly defined supervisory administrative position in the Department of Homeland Security as supervisory administrative position as what?

[00:04:05] Speaker 00:
It doesn't say anything else about what its definition is.

[00:04:08] Speaker 02:
Correct.

[00:04:10] Speaker 00:
Well, you've agreed it's not any supervisory or administrative position in DHS, right?

[00:04:15] Speaker 02:
We don't think it has to be an administrative position.

[00:04:22] Speaker 02:
We think that those terms are well-defined

[00:04:25] Speaker 02:
in the law.

[00:04:27] Speaker 02:
We don't think there needs to be an implementing regulation.

[00:04:31] Speaker 02:
If you look at the law enforcement officers, they use the same language.

[00:04:36] Speaker 02:
If you look at the firefighters, they use the same language.

[00:04:39] Speaker 02:
But the problem is the regulations are implementing that language differently.

[00:04:43] Speaker 02:
So the supervisory administrative regulations among those three are different.

[00:04:48] Speaker 00:
I get that.

[00:04:49] Speaker 00:
But if you say that it's ambiguous, then that means

[00:04:53] Speaker 00:
Because you're talking about the way this same language from the different LAO provisions are implemented by regulation.

[00:05:02] Speaker 00:
So it seems to me you're conceding that they have to be defined by regulation.

[00:05:07] Speaker 00:
You're just saying that the regulation here is an incorrect implementation.

[00:05:12] Speaker 02:
We're saying that the differences among the implementing regulations, defining that same statutory language in three different ways, is being implied inconsistently.

[00:05:23] Speaker 00:
Well, that doesn't seem to me the argument you made in your brief.

[00:05:26] Speaker 00:
Your argument in your brief was that this language was plain.

[00:05:29] Speaker 00:
It's clearly not plain.

[00:05:31] Speaker 00:
It requires implementation by DHS.

[00:05:35] Speaker 00:
And if that's the case, then we get to Chevron.

[00:05:40] Speaker 02:
Respectfully, we don't think the supervisory or administrative language is what is being implemented by the regulations.

[00:05:47] Speaker 02:
What's being implemented by the regulations is whether it's in the Department of Homeland Security, as the statute says, or within some other sub-agency in the department.

[00:05:59] Speaker 01:
I would have thought your argument was that the statute is indeed ambiguous and invokes Chevron, but that the regulations construction is not a reasonable construction.

[00:06:10] Speaker 02:
We certainly are saying that as well.

[00:06:12] Speaker 02:
I think that's fair.

[00:06:13] Speaker 02:
The statute as interpreted by the board, we believe, is incorrect.

[00:06:20] Speaker 00:
No, not as interpreted by the board, as interpreted by DHS and its regulation.

[00:06:25] Speaker 00:
The board just applied the statute.

[00:06:28] Speaker 02:
Well, they implemented the regulations that we believe are the problem.

[00:06:30] Speaker 02:
So interpreting those regulations, if you interpret them very narrowly, as the board has here, we think it conflicts with the plain language of the statute in the Department of Homeland Security, which our client undoubtedly is.

[00:06:43] Speaker 02:
If you interpret them very narrowly, where you're requiring some kind of prerequisite experience of customs and border patrol officer, which didn't exist in 2000 when our client was transferred to FLETC, then we think this is clearly referring to the predecessor agency.

[00:07:04] Speaker 02:
We think it should.

[00:07:04] Speaker 02:
Yes, we agree with that.

[00:07:06] Speaker 02:
But there's a law enforcement element of those positions, the customs inspections position.

[00:07:11] Speaker 02:
So we have a client who,

[00:07:14] Speaker 02:
and her primary position was undoubtedly covered under the act.

[00:07:17] Speaker 02:
In her secondary position, had she been a law enforcement officer previously, she would undoubtedly be covered under the act.

[00:07:24] Speaker 01:
Yeah, but being a, having customs and border patrol experience was not a prerequisite to the position that she occupies.

[00:07:33] Speaker 02:
Having that specific level of specificity, we agree, but the general experience of the law enforcement aspects of a customs officer

[00:07:43] Speaker 02:
We're absolutely a prerequisite to her position.

[00:07:46] Speaker 00:
But that's not what the regulation required, though.

[00:07:49] Speaker 00:
You have to get us to find that the regulation is unreasonable.

[00:07:53] Speaker 02:
We believe that as interpreted, it violates the statutory language.

[00:07:58] Speaker 00:
So what Congress said- Wait, do you think the regulation, did DHS have the authority to promulgate this regulation interpreting the statute?

[00:08:09] Speaker 00:
Yes.

[00:08:10] Speaker 00:
Is the regulation on its face

[00:08:13] Speaker 00:
reasonable interpretation?

[00:08:15] Speaker 00:
Not as a, no.

[00:08:16] Speaker 00:
We don't believe it is.

[00:08:17] Speaker 00:
No, the regulation, just the language of it.

[00:08:21] Speaker 02:
No, we think it violates the language of the statute and we think it... How does it violate the language of the statute?

[00:08:27] Speaker 00:
Don't talk about application in this case.

[00:08:29] Speaker 00:
Talk about how it's an unreasonable interpretation of the statute.

[00:08:32] Speaker 02:
Fair enough.

[00:08:33] Speaker 02:
The statute says supervisory or administrative position in the Department of Homeland Security.

[00:08:39] Speaker 02:
Our client meets those, that criteria.

[00:08:44] Speaker 00:
We've gone over this, though.

[00:08:46] Speaker 00:
You agree that it's not any supervisory or administrative position, so there is some interpretive work for DHS to do in the regulation.

[00:08:54] Speaker 00:
They did it.

[00:08:55] Speaker 00:
Why is their interpretive work unreasonable?

[00:08:59] Speaker 02:
Because it conflicts with the supervisory administrative positions of other agencies.

[00:09:05] Speaker 02:
So if she were a law enforcement officer, she, in the same exact position she is, she's entitled to... But what's unreasonable about that?

[00:09:14] Speaker 02:
because the legislative history talks about the point of this act, the Appropriations Act, was to cover customs officers the same way as law enforcement officers.

[00:09:24] Speaker 02:
So we have a situation and to retain those officers within the department.

[00:09:29] Speaker 02:
So if we don't, if you say because she was a customs officer and then a law enforcement instructor, she's not covered, you have a situation where

[00:09:39] Speaker 00:
Her primary position was covered, her secondary position was covered, but because she transferred... You keep saying her secondary position was covered, but her secondary position is only covered if it meets the terms of that regulation, and it doesn't, according to the board.

[00:09:52] Speaker 02:
And that's the problem.

[00:09:53] Speaker 02:
It meets... There are law enforcement instructors, and I refer you to A362 in the appendix and A291 in the appendix.

[00:10:03] Speaker 02:
The Department of Homeland Security has said the exact position she has

[00:10:07] Speaker 02:
law enforcement instructor is a secondary administrative covered position for law enforcement officers.

[00:10:14] Speaker 01:
So if the purpose of the statute here is retention, why isn't it reasonable to say that she needs prior customs law enforcement experience as opposed to generic law enforcement experience?

[00:10:29] Speaker 01:
We don't see the distinction there.

[00:10:31] Speaker 01:
I don't think you're addressing my question.

[00:10:35] Speaker 01:
If the idea is to retain

[00:10:37] Speaker 01:
people, how does changing the regulation to allow any law enforcement experience, prior law enforcement experience, to be sufficient accomplish that goal?

[00:10:52] Speaker 02:
In her position at FLETC, she is training law enforcement officers, she is training custom border patrol officers.

[00:11:01] Speaker 02:
If you don't promote the customs patrol officers to FLETC,

[00:11:05] Speaker 02:
There's going to be a dearth of trainers who have experience in the Customs and Border Patrol Agency, which is the niche that she is filling at FLETC.

[00:11:15] Speaker 02:
So if she can't get promoted and keep her vendors.

[00:11:18] Speaker 00:
Sorry, finish your answer.

[00:11:19] Speaker 02:
I didn't mean to interrupt.

[00:11:21] Speaker 02:
My apologies, Your Honor.

[00:11:22] Speaker 02:
But if she's not covered when she gets that promotion, the government will lose, the Department of Homeland Security will lose her talents and experience as a Customs and Border Officer.

[00:11:34] Speaker 00:
I mean, I kind of get what you're saying, but I don't see where you mean.

[00:11:37] Speaker 00:
It seems to me that you're saying, because your brief said that the statute is plain, but I think the statute is clearly not plain.

[00:11:48] Speaker 00:
And you've said it's not plain today.

[00:11:50] Speaker 00:
I think what you're saying is that the regulation is arbitrary and capricious when you compare it to the other regulations.

[00:11:59] Speaker 00:
But I didn't see that argument anywhere in your brief.

[00:12:02] Speaker 02:
I think what we're trying to say is, because she is in a position that is covered as a law enforcement officer under the same statutory language, and it's being held... Well, it's not the... I mean, it's similar statutory language, but it's a completely separate statute.

[00:12:20] Speaker 02:
Correct.

[00:12:21] Speaker 00:
And there's nothing that said that... I'm still struggling with the fact that you have to get us to find the customs or the DHS interpretation of this statute unreasonable.

[00:12:32] Speaker 02:
It's in the legislative history of the unit.

[00:12:34] Speaker 02:
Congress said that the goal of this was to treat the customs border officers the same as law enforcement.

[00:12:41] Speaker 00:
And why isn't it the same in their view that if they were in a CBP position or a predecessor, I don't think that distinction matters, and they transferred to either a supervisor of CBP officers or a position that required CBP experience?

[00:12:59] Speaker 00:
That's the same kind of interpretive regulations you have for the LEO statutes.

[00:13:03] Speaker 00:
They didn't open it up to this broader class that they could have.

[00:13:07] Speaker 00:
And maybe that would have been more fair.

[00:13:10] Speaker 00:
But it doesn't seem to me to render it unreasonable.

[00:13:13] Speaker 02:
The legislative history talks about the importance of retaining these people, the experienced customers.

[00:13:21] Speaker 00:
The problem is if you're asking us to look at pretty scant legislative history to override

[00:13:28] Speaker 00:
what on its face seems to be a reasonable interpretation of the statute.

[00:13:33] Speaker 02:
We don't think a situation where the position is covered for some but not for others, a secondary position is covered for some but not others, where the legislative history says they should be treated the same, we don't think that that's a reasonable interpretation.

[00:13:49] Speaker 01:
Okay, you want to save the remainder of your time?

[00:13:51] Speaker 01:
I do, thank you.

[00:13:52] Speaker 01:
Thank you, Mr. Chairman.

[00:14:00] Speaker 03:
Good morning, Your Honors, may it please the court.

[00:14:04] Speaker 03:
When Congress enacted this legislation in 2007, it was not legislating in a vacuum.

[00:14:09] Speaker 03:
And it used specific language to describe specifically this supervisory administrative position language in 5 USC 8401, language that also appears to describe the secondary positions for law enforcement officers and for firefighters.

[00:14:28] Speaker 03:
And consistent with that, OPM,

[00:14:31] Speaker 03:
in its regulations has defined what these secondary positions are for firefighters and for law enforcement officers, specifically this mandatory prerequisite requirement, pretty much identically.

[00:14:44] Speaker 03:
So although we have three sort of silos... So let me ask you about this.

[00:14:47] Speaker 00:
This is what troubles me about this case, is that it sounds like she's working alongside instructors at this training academy.

[00:14:55] Speaker 00:
who are LEOs as opposed to CBP officers, and that they get qualified as secondary coverage and she doesn't.

[00:15:03] Speaker 00:
Is that true?

[00:15:04] Speaker 03:
That may be true.

[00:15:05] Speaker 03:
And I think one way of understanding that is that what we're looking, what DHS is looking at when it's looking to see whether this is a secondary position is what are the job duties and what are the prerequisites.

[00:15:18] Speaker 03:
So for example, there are instructors at FLETC who teach

[00:15:21] Speaker 03:
basic law enforcement classes to all manner of federal law enforcement officers, firearms, physical conditioning, arrest techniques.

[00:15:30] Speaker 03:
There are also law enforcement instructors who are employed by CDP to teach CDP-specific courses, for example, Section 212 of the Immigration and Naturalization Act.

[00:15:40] Speaker 00:
Do those positions require CDP experience?

[00:15:43] Speaker 03:
Those positions would require as a mandatory prerequisite

[00:15:46] Speaker 03:
experience with the activities related to the entry.

[00:15:50] Speaker 00:
And so those instructors would be considered secondary.

[00:15:53] Speaker 03:
Yes.

[00:15:53] Speaker 03:
And so that's the, that's I think what the reference that Ms.

[00:15:57] Speaker 03:
Fitzgerald was referring to in her brief to this sort of list that CDP has in the joint appendix of, but those are also specific to a specific position number, description number, and that's not the position number to which she

[00:16:12] Speaker 03:
moved in 2000, which I should point out was eight years before this legislation was enacted.

[00:16:20] Speaker 00:
Although I think you agree that that doesn't, I mean, if she was actually, if the predecessor's position's all qualified, it wouldn't matter that the names had changed.

[00:16:30] Speaker 03:
Yes, the only thing I'm suggesting is I don't think that Ms.

[00:16:33] Speaker 03:
Fitzgerald had any expectation that she was going to receive enhanced benefits when she transferred to this position in 2000.

[00:16:40] Speaker 00:
So I think that the fairness issue that she's... Right, but if she had transferred to a position at the training center that required experience in whatever the predecessor of a CBEP officer was, we would probably find her eligible now.

[00:16:56] Speaker 03:
I think that's correct.

[00:16:59] Speaker 00:
So let me ask you, the LEF stuff is very general.

[00:17:02] Speaker 00:
Does the firefighter regulations, does it have the same kind of very specific requirements that you either have to be a supervisor of firefighters or

[00:17:10] Speaker 00:
in a position in which firefighting positions is required, or is it more general LEO?

[00:17:18] Speaker 03:
Yes, so the firefighter statute, sorry, the firefighter regulations 84, I'm sorry, 842.803, and under the definition of secondary position, it includes administrative, that is an executive, managerial, technical, semi-professional, professional position

[00:17:37] Speaker 03:
for which firefighting position is managed.

[00:17:42] Speaker 00:
So it has the same kind of very specific requirement as this one does, not just general LEO.

[00:17:48] Speaker 00:
So if you were a firefighter and you transferred to this training center to a general LEO position, you also wouldn't be covered.

[00:17:55] Speaker 00:
That's correct.

[00:17:57] Speaker 00:
Is there anything that would prevent OPM from enacting a broader regulation that would allow people to qualify for secondary coverage if they

[00:18:06] Speaker 00:
transfer to any LAO position from a firefighter or CBP position?

[00:18:13] Speaker 03:
I'm not sure if there's an explicit statutory requirement that would prohibit OPM from making that interpretation.

[00:18:22] Speaker 03:
But certainly, the purpose of these types of enhanced retirement structures are to recruit young

[00:18:34] Speaker 03:
people for physically vigorous activities and to retain them and their knowledge in a specific career track.

[00:18:41] Speaker 03:
So I think it does make sense that.

[00:18:43] Speaker 00:
So in their specific field.

[00:18:45] Speaker 00:
So if she had, how would this work if she was a CBP officer and then she transferred to a direct LEO position?

[00:18:56] Speaker 00:
Is there a translation there?

[00:18:58] Speaker 00:
Does she stay covered, or does she have to start over?

[00:19:02] Speaker 00:
I know I'm asking hypotheticals that are not addressed, but it seems like there's this general LEO umbrella, and then you also treat firefighters and CBP officers more specifically.

[00:19:15] Speaker 00:
I wonder if the experience is translatable the other way.

[00:19:25] Speaker 03:
Possibly.

[00:19:26] Speaker 03:
I think that's the best answer I can come up with right now.

[00:19:31] Speaker 03:
Just to answer a few other points that were made in the opening argument, to the extent that supervisory and administrative position is a well-defined term, we agree completely.

[00:19:44] Speaker 03:
OPM has had this interpretation for over 20 years.

[00:19:47] Speaker 03:
So it's completely reasonable to assume that Congress was well aware of this interpretation when it enacted

[00:19:54] Speaker 03:
when it amended 8401 and the other implementing regulations.

[00:19:58] Speaker 03:
And then finally, to the extent that... What was the position that had been held for 20 years?

[00:20:02] Speaker 03:
I'm not understanding.

[00:20:03] Speaker 03:
I'm sorry.

[00:20:03] Speaker 03:
OPM, in its firefighter and its law enforcement officer, and I believe also in the nuclear materials courier position, these other specialized retirement structures, has interpreted that supervisory and administrative position language, statutory language,

[00:20:21] Speaker 03:
to have that mandatory prerequisite of the specific, whether it's firefighting or law enforcement experience.

[00:20:32] Speaker 03:
So this interpretation of the statute by OPM that these secondary positions have to have a mandatory prerequisite is well-standing.

[00:20:43] Speaker 03:
And then finally, to the extent that this is a narrow interpretation, this is what this court has said before in the law enforcement officer context.

[00:20:52] Speaker 03:
These are specialized retirement structures that are different than most other federal employees.

[00:20:58] Speaker 03:
They're quite expensive, quite frankly.

[00:21:01] Speaker 03:
And they're there for a specific purpose.

[00:21:03] Speaker 00:
And I write that there's also some legislative history that at one point Congress considered just adding these CBP officers into the LEOs.

[00:21:13] Speaker 00:
category altogether.

[00:21:15] Speaker 00:
Is that right?

[00:21:16] Speaker 03:
I believe that's right.

[00:21:18] Speaker 00:
And so if they had done that, then they would just be under the regular LEO statute and transferring into any LEO position would be OK.

[00:21:26] Speaker 00:
But they chose to create a separate system just like they did for the firefighters.

[00:21:32] Speaker 03:
And with very specific, one with reference to a very specific job series and also this reference

[00:21:40] Speaker 03:
So I think there was an intention to treat them, although entitled to similar benefits.

[00:21:46] Speaker 03:
And we're not just talking about enhanced retirement benefits.

[00:21:48] Speaker 03:
We're also talking about early retirement.

[00:21:51] Speaker 03:
We're also talking about mandatory separation.

[00:21:53] Speaker 03:
So these are not just extra money that you get in your annuity.

[00:21:58] Speaker 03:
This is an entirely different way of looking at retirement opportunities and retirement requirements.

[00:22:07] Speaker 03:
to the extent that the OPM has taken a narrow interpretation of the statute that's entirely consistent with the purpose of Congress in these types of retirement statutes.

[00:22:21] Speaker 03:
And if the court has no further questions, we would respectfully request that the court affirm the decision of the board here.

[00:22:26] Speaker 01:
Thank you, Ms.

[00:22:29] Speaker 01:
Harmon.

[00:22:30] Speaker 01:
Mr. Harmon?

[00:22:38] Speaker 02:
Briefly, our point is that the statute is clear that if the administrative or supervisory position is in the Department of Homeland Security, it should be covered and the benefits should be accorded to those employers.

[00:22:55] Speaker 02:
We think that's consistent with the legislative history.

[00:22:58] Speaker 00:
Here we think... So do you think if you were an LEO at DHS and you transferred

[00:23:04] Speaker 00:
to a position that required CVP experience, but not LEO experience that you would be covered still?

[00:23:12] Speaker 02:
We don't really have a position on that.

[00:23:15] Speaker 00:
Well, that is the position you're taking, though.

[00:23:18] Speaker 02:
But the position we're taking is what the regulations have done here is they have carved out a subset of people who meet the face of the statute.

[00:23:26] Speaker 00:
Well, they haven't carved out anything.

[00:23:28] Speaker 00:
The statute, these people were never covered

[00:23:31] Speaker 00:
under the LEO statute before, they created new protections for them as a separate class.

[00:23:36] Speaker 00:
They considered adding them into the LEO, but they didn't.

[00:23:39] Speaker 00:
And so they treat them, as far as I can tell, just the same as the LEO and the firefighters, that the LEO regulations requires LEO or an LEO secondary position, the firefighters require firefighting or firefighter experience, and this requires CBP or CBP experience.

[00:23:57] Speaker 00:
And your argument would suggest that if you're in any of those three categories, if you transfer into any secondary position, whether it's LEO, firefighter, or CBP, you're covered.

[00:24:10] Speaker 02:
The legislative history doesn't talk about firefighters.

[00:24:13] Speaker 02:
It does talk about LEOs and CBPs.

[00:24:16] Speaker 01:
And the last point I want to make... Your basic point is that it's not reasonable to

[00:24:21] Speaker 01:
treat customs officers as a separate category, right?

[00:24:27] Speaker 02:
Correct.

[00:24:27] Speaker 02:
That's right, Your Honor.

[00:24:29] Speaker 02:
The last point I want to make is she transferred in 2000.

[00:24:32] Speaker 02:
That was eight years before this act was passed.

[00:24:35] Speaker 02:
It was three years before the creation of the Department of Homeland Security.

[00:24:40] Speaker 02:
So to the extent you're going to find a mandatory prerequisite that she worked in a department that didn't exist at the time, it's difficult.

[00:24:46] Speaker 00:
No, I understand that argument, but I mean you didn't point to any

[00:24:48] Speaker 00:
thing that suggested her position required the equivalent experience of her former job either.

[00:24:55] Speaker 00:
You might have a good argument if that was the case, but you didn't point to that.

[00:24:58] Speaker 02:
I rely on what we said in our brief.

[00:25:00] Speaker 02:
We did address that briefly.

[00:25:04] Speaker 02:
Thank you.