a policy issue in terms of what you're asking the court to find in terms of the logistics of you know a lot of like like firefighters and police have agreements about how they first you know they go to dissemble service commission or they go through an arbitrator and then it goes to the then it goes to disappear court and they're you know they deal with that was an immediate issues and then later there maybe you know there may be locked is filed in in the federal court in this situation where you know why wouldn't if we agree with your position why wouldn't everyone refuse to show at at their civil service hearings and because i mean a lot of there's a lot of threats and you know when you see these cases you know i often find in the firefighter in police cases you know the i mean a lot of them are stress related and these are jobs for people do have a lot of physical injuries they do have a lot of mental stress in going through it you know if if we were to roll the way that you were then i think anyone after this which is how their clients you know don't show up at your you know your civil service hearings and then you can just brings you know then you can pick your venue later in federal court which will be much more favorable to you assuming somebody who's completely unable to participate in the process but refused to do so or declined to do so or went on vacation or whatever the reason is you're saying that in california being represented at the time by his wife responded to the notice with a letter to the city which stated that mr edwards lack the mental capacity to decide whether or not to appeal the proposed germination and that that the commission then calendar to the matter and so he had appealed but what i'm getting at here is that instead of going there and saying i'm not here i want some other avenue or some other vehicle he in effect the commission this is the remedy i want to pursue now give me some more time no your honor i believe that what mr gill did was he appeared at the various hearings saying that mr ebbers continued to be disabled and asking for more time so that he could consult with him for the sake of making this decision whether or not he wanted to appeal when i have to and how can you appear i think you're saying that that he never made a general appearance that that fact they're actually continuances that are accomplished i think more than one hundred three maybe intel finally and then they said they want medical evidence right and that provided for it and then when it finally discovered service commission that in a lawyer shows up and wants another one and find the civil service commission says well no we're going ahead today and the medical evidence isn't witnesses yes room ok now there's a deal with did not have the authority from mr edwards to appear generally to rere present him with regard to the taking of the testimony and the termination for a commission or before the cooperating to our own jurisdiction something going maybe you need to think about i guess you just from a kind of global perspective there really were were two factual proceeding well let me let me just say let's just take this scenario if we were to find that there was evidence present you know that that that's a lawyer generally appeared not specially paired with generally appearing that he was represented you know we don't find that he's been asked to do her head we're going to have stand the lawyer make the decision well i'm not going to do you know we're going to walk out we're going to walk we're not going to do it they go ahead essentially have a hearing  and they call witnesses and there's evidence of why he was terminated right and if if in fact he willfully happening to southie was not mentally incapacitated they would have the authority to go ahead and hold that hearing then it's or an argument that he can be stuck with all of that then if we were to find ever ever that every step of the way it ought to be into the proceeding yes your honor which he did in the demotion just not before the court today but he never opted into the civil service proceeding decision that mr edwards did in fact opt in to the civil service commission mr gill appeared on no more than on three occasions asked the hearing it was continued on three separate occasions the administrative proceeding that was handed here or in stand does that employee have a choice whether to go administrative going or going to court it is my understanding that through this particular city and the m o u's that are not largest part of the record they need to participate in the personnel commission hearing and exhaust their administrative remedies first before proceeding to court and the california supreme court decision that was referenced doesn't pr voluntarily filed by mr edwards counsel as it related to the termination and then at the eleventh hour mr gill said if you laded to a denial of that writ and judgment being rendered in favor of the respondents so that really has been the thrust of of my argument so any procedural deficiency or any merits was waived at the time mr gill stipulated pointed out implicit in the civil service commission itself was he indicates one i cannot make a decision whether or not to proceed with the appeal he doesn't say mine past city or hits me for making the decision period then any where do you find a finding that he was not so incapacitated has to preclude hiring a lawyer or doing anything out i don't think that was a specific finding in essence they proceeded by way of the full prove up in my opinion simply because there was no evidence proffered by the titian or the personnel commission level well did they did the simple service commission have to implicitly make a finding that he was capable at the incapacitated i do not believe they could go forward with the civil service commission that gave him ample opportunity to participate he was represented by counsel mr gill simply walked out as opposed to establishing on the record i think mr gale had a duty at that point in time to establish unequivocally on the record mr edwards in capacity at that personal commission hearing level then go up to the city council for appeal but again mr gill stipulated to the dismissal of the writ of mandate with prejudice anything on the merits and ultimately the conclusion was reached by mr gill i will stipulate to the dismissal with prejudice judgment answered in favor of respondents which facts in my opinion is not only an issue handle on where we are where we've been you start out with a letter from a layman nonoy was saying something and the commission treats this as a feat ok then then we have a claim based on federal statutory law and age discrimination that somehow precluded by the city council's decision how do we get there your honor i think really it's not the city council's decision it is the decision to dismiss the writ of mandate with prejudice  adjudicated like dismissing a case with prejudice so your point is a by going to the commission and the city council with the anti age discrimination complaint under federal law it's a bar to getting into federal court might know your honor he went he went to the commission on terminations grounds the motion against set aside he never got to the merits never got to flesh out his climbs whatsoever well how do we know he didn't just present the state's many say we don't know but with the dismissal of the rid of mandy with prejudice it's not only what he brought but what he could have brought theories he could have chosen not to participate whatsoever undercount his argument ran into state court or federal court in perfected his remedies unfortunately mr edwards counsel made an election to proceed in the vargas ruled against him on needs a motion by rate of mandate he unilaterally decided to smith's without proceeding on the merits as to the writ of mandate to the terminations now he's compound the problem has now filed it will forty one dismissal of the entire action with prejudice which i dealt with in my brief as a district court in the district course he did not reserve the right to appeal and we have raised the ability of this court to have jurisdiction on this appeal whatsoever now the problem again in my opinion procedurally it is if mr deal of mr edwards did not want to live within the four squares of that dismiss experience is you have some form of guardianship either through an ad litum mechanism or a formal guardianship didn't have to deal with that more than just saying we're tired of waiting and we're going to go forward today didn't i have to deal with that claim in some way more formally and then just saying we know we're just going to go ahead because we're tired of winning and i would i would be of the opinion that the petitioner would have the burden of proof on that would lend itself to me getting out of my mortgage all my contractual obligations because i could allege without supporting medical opinion with the proper foundation and i was going to pass it i want to ask the records show in terms of the quest for the doctor's report did they presented on their own or did that commission request give us medical the commission asked for supporting medical and where did that occur and between which request for a continuance that was after the first request for continu rules of evidence are somewhat relaxed at these commission levels obviously in superior court there would be the physician coming in and rendering the opinion the meat was cross examining that to what is your suggestion to this court as to what in truth long term incapacitated from the very beginning and to this day with all of us running around asserting his condition but not knowing and not willing to prove it all of this is an idle incapacitated there's no lack of empathy you are counsel it's just unfortunate that mr edwards has boxed himself out procedurally we can't deal with the incapacity on the issues here at this level in my opinion all we're left with district court with prejudice with no reservation of appeal the dismissal with prejudice of the written mandate on the very crux of the case in front of this panel those procedural decisions by a long qualified co and before the city council and the three instances and even on the last instance when the civil service commission determined to go forward the commission did not question whether or not question on the record by the commission or any comment by any member of the commission indicating that they did not believe this man to be disabled that that time what is your response to the roof forty one run to federal court after the writ of mandated you be that as it may it's the position of the of mr edwards that never having properly been before the commission never having made that option angeles and that is in our brief and it is the extensively discussed in our brief never having been properly before the commission anything that flowed from the commission's decision there was no hearing on the merits what mr edwards did throughout this process was trying to he was sat on a path and he kept trying to say well i don't want to i don't know if this is the path i want to be on i am not ready  to appeal through this commission and as the california supreme court made clear in this case he has that option he did not make the option to go on his path so anything that flowed from it  one point mr gill even went so far as to ask is there something more that you need if you need more than what i have given you give me some guidance and the commission declined to do so well now the fact th decide that that was the route he wanted to take however even by filing the writ of mandate since there was no decision on the merits the the filing in the dismissed but if you're confident at that point to trial it wouldn't that be the time to bring up that everything that occurred previously should be known for a day because you were not competent and then you go ahead you're confident to appeal to the purport and then you're competent to dismiss it with prejudice and you never deal with that and that's all you've done so i mean really in his complaint in the district court i mean that holly's essentially saying that's where he should have done it and by not doing it there then we're not supposed to worry