juror and my colleague mr gonzales will the will deal with the status of the law we believe that he spreads through that needle anyway but what i'd like to talk to you about is really the last two months of the united states supreme court decisions of i would urge that what we're saying it has a sea change in the way that cases are looked at the way started sizes is understood and the manner in which so many things are going to be affected i think it's going to be i would urge not only in several cases like this now because i think he was really referring to the subject matter which was a having to do with sex offenders but i think the standard that we're about to have a stablished across the board is that only the legislature may adopt new federal laws restricting liberties and that each of the branches of government twelve dollars and three dollars are going to be clearly delineated on what we're looking at court doctrine that they're going to be swept away and that we're looking at something completely different and i bring that up because i feel like that it would impact mr bott of this case in particular in this matter he has been from the outset dealing with the civil service reform act which suddenly would have a right to a jury and i would urge to you that under the  current any reading that we have of recent decisions is that the jury route is going to be created under haman for instance was denied for post punishment work based on what the original intent was before those that they're all going to be gone and that we i would urge do not have a clear indication of that is still the last really six weeks of decisions but at this point when we can bond that dissent which by all indications even with the present makeup of court will soon be law with the privileges and immunities citizens clause it was discussed by justice thomas and mcdonald versus chicago and then the new case it just came out with department of commerce versus new york which it's a itself comes directly into play without concern for eminent domain exhaustion rules giving an immediate ride upon the taking and then out of  it is our contention that even under the standards set in a baazi mr ybarra should receive a begins remedy we would like to bring the court's attention to a case that we did not cite in our in our brief but a case out of the d c circuit a rel the international communications agency where the d c circuit found that a former federal probationary employee had a remedy under particular segment of employees the supreme court appears to have imposed a kind of clear statement requiring requirement on congress requiring it to indicate  explicitly its intent to displace judicially created remedies for constitutional deprivations now i'm very aware of and how the supreme court has said that  now in this case i don't think that the facts in this case i don't believe or can be deterred can be stated to be a new context and that the case that i cite two is davis passement pass and in this case i believe that mr barr is similarly situated to that i really don't believe that this because the civil service reform act leaves him out and i'll tell you that even if even under the current civil service reform act it's been hard to get through for me but i believe that it even is it was amended  to include the whistleblower protection act and i think it was in the late eighty's but former employees theoretically have a remedy under the civil service reform act and remember this the facts of this case he testified against his direct supervisor while he was employed by the federal government but the retaliation didn't happen until he was a state employee and so i think this fact pattern creates the same type of fact pattern in in passement where the statute the civil service reform act just leaves him out why because if you look at the civil service reform act you'll find that you'll find that the real civil service reform act was meant to streamline the grievance process for federal employees ok now whether he was and a lot of former employees fall into that category because they get fired for various reasons right and so the remedies that the office of special counsel and later the merits protection board what they can do is reinstate the employee and that that remedy is allowed and within the federal government's jurisdiction if if if the service of civil service reform act is applied in this case we seven i believe that the title of the trial court used the song the wrong standard  it applies in this context because we're claiming that there is a we're claiming that there is circumstantial evidence and that the reasons that they've offered is just a  the evidence that we would like to know about would be in the in the possession of the state or the federal government and i'd just like to cite two hundred and eleven case coverts in which we supplemented our brief and  connection between the bars terminations and his membership in a protected class all it's as is alleged that a female colleague of his communicated her belief to a bar how the bar's colleague described how she was being very unprofessional in meetings carrying and showing his personal handgun and standing over interviewees in a way that intimidated them nothing that shows any amendment retaliates and plan he he fails to plead any fact showing that anyone at h h s he had any awareness or knowledge of his prior testimony before the feds two years ago sides so clearly it could not have contained a reference to the testimony of the rd and th conversation he alleges took place after he was terminated from h h s see meaning that that could not have been a substantial motivating his terminations the only conversation that he alleges took place between his federal testimony and his terminations he cabins to including only talk of how he lied on his resume and lied on his job application which i take as excluding any any mention of the testimony if he goes into that finally grain detail in those other two things at any rate it doesn't he doesn't allege that one conversation included mention of his testimony further i would submit that as a matter of law that conversation even if he did allege it had included mention of testimony came too far in time before his term a nation to be a substantial motivating factor the window he says it happened and as a three month window running from when he was hired until he was fired and the supreme court and clark county school district the breeden made clear that to count as a motivating factor the knowledge of the public speech claim that's barred as a matter of law this court has said over and over again that to be a candidate for the class based animists that that claim requires the class you allege has to be a racial a bar has not alleged he's a member of any kind of racial class he's alleged he's a member of the whistleblower class which is clearly not a racially based class and the  there were there were comments derogatory comments about the ethnicity of the plaintiffs who were italians that the plaintiffs alleged and the the court decided that the analysis of whether those derogatory comments by the plaintiffs supervisor was whether they just constituted stray remarks or whether they were evidence of discrimination were best left to the summary judgment stage not the twelve the six stage lawyer the fact that the plaintiff had tested testified against the old employer the plaintiff clearly says that he says that the testimony was discussed in the meetings and the testimony came out in the newspaper of the united states department of homeland security in this case on appeal mr your bar has raised two issues that impact the federal law at least the claims and been lodged against them one is b adequate remedy for his client this issue has been discussed in brief in the court below and i think that it's just very important and i'm sure that the court kno not to be taken lightly not just from the perspective of the plaintiffs not just from the perspective of the defendants it's a judicially created remedy and as such the abbassi court just a couple of years ago reinforced it unfunny and we disfavor this remedy and we will only ask or we will caution you very strongly and asked that before you extend beyond what we've already recognized as the context which is th amendment which is and here which is the due process clause of the th amendment which is in here which is the cruel and unusual punishment clause of the th amendment which is not here before you go beyond that you have to determine whether any special factors exist that would caution you from going beyond and extending bits in this case as we argued with the court below one example is the civil service reform act it's pretty obvious from the complaint the allegations that mr your bar made that these allegations against my clients are result of his employment relationship with the federal government before he started working for the state of texas this act the problem that he has is the adequacy of the remedy but as the supreme court has pointed out and this been pointed out by the courts below it is not necessarily the adequacy of the remedy that is available it could be available to any one person in a specific instance it's the comprehensiveness of the statutory scheme that's made of billable that allows for a general context for redress mr your borrow says that we gave false information to rd party it's in fact congress has provided to comprehensive statutory schemes by which a plaintive such as mr barr could availing himself of the issue of whether it is an adequate scheme is something that this court has been cautioned not to twelve into the important thing is that congress has appealed itself or has a veiled these it in his argument and it's the same here with the federal defendants we have a conspiracy that's been alleged here where one of the elements requires that it that concepts i think we're going to be returning to the original language of the th amendment and to two hundred and ninety three and nineteen us that we're not supposed to anticipate what that court might do in the future but only to apply what the court has already said so that's what we will do here whatever whichever way that goes in and that there shouldn't be a complete barrier to a remedy with a row of this nature that he's the sort of employee that we want to encourage to call out milligan live to and that's what we're asking for that we get a chance to develop all these issues and then in the district court and then be able to bring them back to you about it'll be a little bit down the road but i think we're going to say some try just i think i hope i'm not delusional or delusional about that but it looks pretty clear to me that the