they've explained that you need five basic elements in order for a claim to be accepted within the scope before you go there mr cardoza how do the claims that your client raised before the department of labor differ before what was planned in the district court  so the difference is that the claims that would be under the fuga they require a showing of abuse or error on the part of employing agency there's no similar requirement under the f t c you're correct in terms of describing the legal nature of what the department of labor has exclusive jurisdiction over but my question's a little bit different i'm asking what your client actually pursued in those t courts he make claims before the department of labor he filed a complaint in the district court how do those two claims differ i mean those those two claims differ obviously already mentioned in the  how could a connection with his germination from work how could that differ from some if the employer is acting abusive asli so the hypothetical that we've considered for that would fall within the kind of the gap between those two is that let's say he so he were transferred he was transferred and then terminated is transferred within the rights of the collecting by you however if that transfer was done with the intent and knowledge that had caused him extreme emotional distress we believe that it would still satisfy that requirement there was no physical abuse there could be no physical abuse or verbal brief is well done so i commend you on that you say for example in your reply brief ok on that at the bottom of page two carrying over to page three say the department of later labor did not consider much less rule on any claims that mr fuqua might make that his emotional distress resulted from the postal service conduct that was neither abusive nor erroneous etc ok here's the difficulty that i have with the construct rights argument argument is clear why do we have to hypothesize on claims that he might may we're actually in litigation and we know what claims he did make and they're not disconnected  francisco or something in the city no no that's all he did go but the hard part the hypothetical that you propose is suppose that they deliberately transfer them to alaska and the whole point was transferred to alaska will no acquit he's a midwesterner right hypothetically fine but that's not what happened here right he got transferred to missouri right so why it why is it legally appropriate for us to be asking questions about claims that he might make finally just look at the claims he did make so i mean i think that the claims that he did make are satisfactory in this case was dismissed for lack of subject matter jurisdiction so the complaint has not been tested the u s p s says that it was these erroneous count which paragraphs thirty three and thirty four of the complaint so looking at those paragraphs they allege damages for severe or extreme emotional distress based on the defendant's treatment of him and all of the prior paragraphs above described the treatment after five the defendant allegedly why don't those factual allegations up the treatment that caused the emotional distress in that case as alleged by your client why don't those amount to abuse or a growing yes actions i th the department of labor has said emotional distress damages that arise from the workplace are covered when the age when they're based on the agency acting abusively or eroni asli and in reading plaintiff's complaint and i know you didn't draft as but in reading plaintiff's complaint it appears to me that everything he alleged in the district court was caused by in terms of emotional damage was caused by his i mean he's got the right the only place we can look is the complaint and so we and you're right you're absolutely right that it's notice pleading it's not nine be pleading or anything like that but if you look at the complaint don't you run right into what judge saini there's an observer you know what what makes this in order to have subject matter jurisdiction you're trying to argue that his emotional damages that he's claiming in his complaint did not arise from defendant's abusive or  so our question is based on the pleading send a complaint which is all we have to look at where can we take in here that these actions were causing his emotional distress were not based on the employer's abusive or iranians caught because it seems that's what he's alleging i agree that it certainly seems that way from st read the complaint but again the standard use is entirely unclear ank your honor the peace corps council there's a good reason we don't generally hear federal employees like mr a few quid come running to the federal courts to sue united states under the full tort claims act every time that something happens to them at work that might upset them st of all there's a huge floodgates argument more specifically this is because congress it's created the federal employees come with councils referring to address and to provide compensation for work related injuries under that provision to be administered not by the federal courts but by the department of labor in situations where alleged injury happens at work another reason regarding these emotional distress claims is that to the extent that  summaries judgment stage and title seven and then he was ultimately given a chance by this court and remained to try to raise those same claims before the part of the labor for the federal employees compensation act and they lost doesn't entitle him to another shot to go back to the district court and say hey you know i may have forgot to do something or it wasn't perfect in front of the department of labor and i should be given a chance to try to raise and all true alternative theory for emotional distress damages that i didn't raise him from department of labor and in fact the department of labor said these are circumstances in which mr if you go you know we may be able to award you compensation under the federal employees compensation but you have to do a couple of you have to show that your workplace injury your workplace emotional distress was caused by the wrongful  otherwise improper behavior of your lawyer which is exactly what he alleged both of the district court level and in his claim to the department of labor and and in order to get any kind of compensation for what you're asking for which is really the whole gist of what this case is about you have to be able to show us some proof of your damages and they asked him not once but i think at least twice for additional medical information to support his claim from the stress and they told him what they would consider they told him they would consider terminations and directed him to submit any supporting evidence within thirty days the department of labor specifically told mr hugh quote the failure to submit any medical evidence and directed directed him to have his attending psychiatry or clinical psychologist submit a narrative medical report detailing dates of examination treatment history and detail finds of symptoms results of anal psychological testing diagnoses and clinical course of treatment followed and the physician's opinion supported by medical its explanation regarding the cause of his emotional condition and that's what he failed to do and this is under no fault this is under no fault statute he doesn't have to prove fault here he just has to provide evidence of that so what he's alleging henri man is a should be allowed having failed to prove any evidence to support a no fault claim he should be allowed to allege remain for the district to the district court to manage how the department of labor is supposed to decide this case if it were be sent back to the department of labor the decision here think what he's saying is that i understand i haven't prevail under i want a chance to bring a federal tort claim i think the problem he runs into is he then doesn't proffer any kind of facts that would it would kind of get him out from under her feet if if you know what i mean right it's in the briefs like exactly it's a circular it's a circular is no there's no question that if we just sat down with a blank piece of paper sure we could all hypothesize a plaintiff that can kind of plead out from under fico maybe it's an odd set of facts or circumstances but we could do it but the problem is that this particular plaintiff hasn't done it right i mean we look at the i mean there's not anything we look at the federal complaint i don't see it there i don't i agree your honor i don't think there is any way to do it specifically so it's like it's been hypothesized that he will shortz legally possible everyone agrees with statements about the sufficiency of the evidence submitted specifically regarding to the medical evidence of the doctor's note that's required i think that's primarily because it was primarily designed to deal with physical workplace injuries