the next argument is in the loomis vs merit system protection board of appeals two thousand eight hundred thirty five own emotional reopen to replace it or a decision to look but by what standard that's the regulation contain any standard at all or does it simply empower them to do it whenever they think they want to do i would discretionary authority of an agency is limited by certain criteria that are right in the regulation that grants the authority in the first place by contrast this appears to be a circumstance in which the board and  want to give themselves complete an unlimited discretionary authority they could work very well done that regulation it's still unclear to me is this who regulates so just the r leaving that question open but even if we can review it it's going to be a very heavy burden on you to demonstrate a reason that they abused their discretion and not and if there is we'll get to your answer well my answer is that in cases that the board is discussed a standard that they use in deciding whether or not winning is warranted and that regulation to produce the petitioners i have with the retroactive application rule is that the the pe regulation i was in notice and comment period and there seems to have been a rush to implement your client's salary to avoid the implementation of the rule so if there is an ambiguity as to whether it's re fact or only as a consequence of the agency trying to circumvent the rule well the people with the way if it's both and i think it may be it there's ambiguity how does that meet your heavy burden if you're as much a fault here as the agency is as you then how does that meet your heavy burden correct and then they didn't appeal even though the documents say the opinion explicitly tell them they have thirty five days the other fellow got the same kind of men he appealed got a reverse wen very unappealing case to say that despite that the board abused its discretion and in effect not waiving the time limits for that i and i understand that position well i would say that would make this case different just a duck more refusal to implement their discretionary authority then every time the board takes an action we'll find a group of people coming in afterward saying we were similarly situated and you should give used your discretionary authority to reopen our cases which are now late we understand they're late but on the basis of this authority from the federal circuit they would say you must give all of us similarly situated the same benefits well i don't think it was with we had every kick nearly every ruling that benefitted an employee would result and then after flood of these similarly situated people who are saying we didn't file a claim but now we are and you have to exercise your discretion i recognize that legitimate concern i will note that the distinction that th case presents that i think would not present that certain the general sense is that these are not simply say in new jersey who are receiving what decision and in another employee seattle worst san francisco in every case we're going to have to decide how similarly situated is similarly situated i don't think you have to know i don't believe that they're in pennsylvania that's also not to new jersey so they get in and i was not no because i believe the difference is and i believe there's a difference between similar similarly situated and the identical situation which is what these these individuals saw there's absolutely no difference between the dates they apply were promoted the positions they sought that the passage of the regulation that was implemented on them august you off the stage when they were told that their pay was paid reduced and they basically got the same exact and i don't understand why you  imo that now non presidential opinions may be cited but the regulation the change that made it explicitly perspective all i can to the extent i reached that regulation i did not know i was doing it and without giving it to terrorists i feel that the state of law is clear i noticed that the n s p now i'm sure their position is you don't have to discuss it because you didn't appeal it but the retroactive application of that regulation appears to me to be plainly against the law and us supreme court is pretty clear in the case of but bowing versus georgetown that you have with the logic of what you're saying is even if your client had never appealed even at the age a level he's entitled to come in years later and say the what was done to me is against the law and therefore even though i never filed a stage one appeal i now that relies upon well if it was necessary for you to file an appeal in the first place then why was an equally necessary for you to appeal the adverse a decision to the full board well because i don't we say you have to deal in thirty five days but an extraordinary and exceptional circumstances will wait as it seems to me to be something that i it's the most impossible for viewing court a less it's going to  time they're recognizing that the request to reopen the petition is on time so were are you feeling the rejection of your argument that you had good cause in  filing or you're only appealing the decision of the board not to reopen we are only appealing the decision not to reopen a small that's it because i am reviewing the standards of the board as to food for  we understand it that standards are pretty high standard in and of itself but we view this cash for the standards of you open as a separate us all right let's hear from the government propose any rule of general applicability seem to me he was saying under the particular and perhaps unusual circumstances of his exact case the board abuse its discretion and declining to reopen it's a very specific application which would only apply to him and anybody else with a dental facts which would be seeding the unlikely what would open in future cases there would be no reason for it is not a request for you you would open i'm just trying to understand what your argument your argument seems to be don't accept his argument because if you accept his argument the m s p b will have more work to do then if you don't accept his argument because he and maybe some other people will file things that otherwise they wouldn't file i'm sure you're quite correct there would be more filings and other what was then a reason to reject his orchids well i think the reason to reject it are just the board needs more get more resources that you get more resources from the congress what's the board is reopen a case initiative decision and clearly what about what do we but the of the challenge here is i understand the only issue that he's presented as he told us at the end of his argument is whether the board improperly refused to reopen the case on its own rocket and i my question to you is does the government concede that we have the sticks or knows the government's position we have no jurisdiction even do have to stick through a few of the boys refusal to reopen that we could do something about that only if there were truly extraordinary circumstances and whatever one maybe the discrimination even causes them to miss their deadline so they didn't file on time and the board declined to exercise its discretion with this court have authority to in that sort of instance intervene and say the board should have exercised its discretion because discrimination permeates this r are correct that my hypothetical had some problems point that i'm trying to come up with is an extreme circumstance that itself causes the  delay in filing and then the board declines to reopen exercising its discretion saying nothing so we really don't have anything any explicit decision to review what do we do we have authority then my answer is no they're setting aside this because analysis on timeless matters now and looking at this cou siding we do have the authority but we placed the heavy burden that i discussed the matter to go with mr lynch on the on the pardons does that amount to a rule that we do have your position here and this argument inconsistent with your brief because of it's correct that we have no jurisdiction to even review the non reopening then you should be asking us to dismiss the appeal because we have no jurisdiction but it page eighteen of your brief you instead ask us to affirm the board which we would have the power to do if we like the fact that the petitioners are now or fitting that argument on this doesn't deprive the court of jurisdiction but it certainly gives this court very little to decide because the time  was doesn't leave with anything to decide if you're if your position is well we have jurisdiction over the appeal but the only issue is not reopening and we don't have jurisdiction to go into that so it seems like we have to dismiss the appeal because as presented by the appellant who gets to decide what he wants to present there's nothing left within our power to decide i think the court very well off with could rule to exercise their jurisdiction and that's what their argument ultimately comes down to but that is not a clear and material legal error it's not something that's been there it would be at this court it already issue a case saying that that those regs invalidated regulations and if the court if the board had had you know the board instead rules that these regulations apply despite control appropriate disposition would be to affirm the board's refusal to reopen on that song i think that's right it is correct and just to compare this case to haynes the main difference between this case is there was no final decision it was just a letter from the board's clerk and what if there is been a holding by this court under rule of law which holding would make it clear that the disposition by the board of an appeal was wrong and the appellant then goes right after we've issued our decision to the full bore and says please reopen my case because it's now clear it wasn't clear earlier but it's now clear that the federal circuit the spoken on the issue and i'm going title to the relief i asked the a j for it was tonight because the a decision was before the federal circuit spoke wouldn't the substance of the decisions that's correct yes on the other hand and this case of ten months passing by and that's one one factor that i'm not really addresse witnesses die were some documents lost to us as something happened to prejudice the government here or complicated the work of the board without my original point the interest in finality if that ignored that would open the floodgates that there would be a there is no there will be no commitment to request or view that it's ok it is acceptable it sounds like what you're saying is that the board does weighing between interests on the one hand such as analogy and on the other hand what you call getting it right and it does some kind of way and then it makes a judgment call using a discretionary approach and if that's right then we would certainly have the ability to review whether the conclusion whether the nature of the board action is something that's in squawks post it's not was and let me ask you a different question over the as i've been looking at all of these board cases i get the but they did see something wrong in the case they saw that and that something was the retroactivity because they said it back to the l j for that specific purpose now when my clients come along the deck or decision is not the legal the changing of law it's just a trigger for them to follow up with a law was always the same sense boller the law always was that you cannot retroactively apply regulation so deck more i it a precedent we're relying upon it's more like a demonstration to the board that there is something amiss here they think they saw that there was an issue in depth mar and they sent it back in the center back to a hearing our case and hearing it in my view was a really necessary it was really a legal age because it was it was a circumstance where jurisdiction and substance collide if there was jurisdiction that there's something out here now you know the difference between us the petitioner's and dec mar is we specifically requested that they review it and in their refusal and act and this is important too to consider that request to be have have merit now you know i pay for my time are you saying that the non real pinning decision is reversible simply because it wasn't explained no in the matter back tell the member system board it was the use of discretion because because they didn't real but there's also another patch and now would be to say that under the circumstances of this case that with with the facts