court i have actually with me here today dr tompkins who was seated in this room to hear this argument with a with us one thing i'd like to go into to begin with unless we need to go through all of the facts which i'm sure w be talking about there is in my opinion confusion here regarding excepted service versus non acceptance service this is not a situation where we're talking about a differentiation between an employee of the veterans administration who is within the accepted service or non accepted service or non preference that is not what we're talking about here we're talking about a new set of statutes which is never squarely been addressed certainly by this court and that would be statutes that were enacted in my nine hundred and ninety one dollars under public law one hundred and two dash forty which was called the department of veterans affair health care personnel is what the district court somewhat referred to in the order in this case it is also what was referred to in basco which came out him proximity may st i believe it was  that provides judicial review for certain claims but doesn't for other claims right what we have is silence and one statute your honor say so you have one that says it and one that son we have won inclusion in one statute should not be used as an exclusion if it's not actually included or if it's silent in another statute in the district court in this case so i  me if if it's not included if that's supposed to be a clear indication i don't think so when we take it in the context of our case law and congress knows what our case law is and our case law says that there is a clear presumption of judicial review and that the agency bears the heavy burden and of showing that that presumption should not exist in this case plus in the new statute as part of these new statutes your honor a directive to the secretary of the vet of the veterans administration to an expositor procedures for in this case doctors who are not going to the disciplinary appeals board and that's what i'm trying to point out your honor is now we have a differentiation between not accepted service or not accepted service we have a differentiation between some doctors who are all of the doctors or are of the same category except one set of doctors who have been terminated or have an adverse action based upon their professional conduct that is shock provide specific rules and what we get to hear is is a logical that congress would intend to allow this tide of what's happened here when the rules are not action that doesn't involve patient care i'm not assuming it like that your honor i am i am arguing congressional intent in whether or not congress would have intended to allow the secretary to create rules that are not necessarily enforced as in this case and then not have judicial review to rectify the situation if the rules were followed we would be talking about anything here today but in this case the rules were not followed they were grossly followed they were not followed because the hearing examiner found in favor of dr thompson's recommended reinstatement and pointed out that the deficiencies might have been  permissible for removal from his position as a sheaf of surgery but not a year and a half later when he is a practicing orthopedic surgeon who has been there over thirty years and then removed him on the basis of potential violations or administrative deficiencies from a year and a half earlier when now he's an orthopedic surgeon dr tomkins was intitled to the benefit why are those not fortunate in that you didn't raise any of these before the district court i mean you can't raise these for the st time he'll i believe we did raise them in the district court your honor we we argued th amendment in procedures violated equal protection in the th amendment and i really don't think just throwing out the state of the phrase this amendment is enough to put the district court on notice that that's what you're arguing and the district court didn't rule on that because the district court didn't didn't have any reason to believe you were arguing well the district court certainly had reason to believe we were talking about due process under the th amendment and the district court didn't even address that the district court simply said well it's not in the statute if you follow the route the reasoning of foul then that it's simply not being provided for by congress and what i'm trying to argue to this court is the court can take this on this on a congressional intent basis just looking at statutes before we get to cont to the constitutional level but if if congress really intended to create hate a situation i don't think that it would be logical for congress to have created a situation where the rules that are written by the secretary are not followed by the supervisors and then you have the minute to make a constitutional argument in this case and and that's one of the other items i wanted to address the court about for example i believe it was the st circuit pathet that we cited the pointed out that there could still be subject matter jurisdiction over the constitutional claims regardless of any statutory bar so this court has at the best case you have on that subject is that it on the subject matter of whether or not there could still be the st circuit recognized in two thousand and one that there still could  authority or subject matter jurisdiction in a situation where there was a colorable constitutional claim you know and i submit that there is certainly a colorable constitutional claim in this case what what is somebody like dr tompkins i was be asking the court or asking us i would be submitting to the court if the situation is there and this would go to congressional intent or certainly the court could look at it from a congressional intent standpoint what happens when the rules are simply ignored when mr gately adi rejects the grievance examiners recommendations and after twelve hours of evidence your hearing covering three days and so does not make specific statements as required under the v a handbook does not make specific statements how the recommendations were contrary to law contrary to regulations contrary to departmental public or published department policy or were not in accordance with the preponderance of the evidence that didn't happen in this case i understand that argument and that's the the department on a full time basis under a permanent appointment and therefore and certainly being there for over thirty years have a reasonable expectation of that continued employment and it's extreme i would s it's a very colorable quite constitutional client when the person that heard the evidence found in favor of dr tomkins and the person who did not hear the evidence simply rejects it out of hand that certainly makes his position and has a permanent and a recommended reinstated person or physician as being a colorable client you're rise to the level of a colorable constitutional client and that person was even part of the accepted service and it dealt with basically and in turn and it simply didn't rise to the it does say that your honor and it's before the new statutes that came into effect and in my last thirty seconds what i'd like to least point out i hope reserves but i simply want to point out that we're not talking about categories of employees we're talking about employees who are terminated for one reason versus terminated for another and some get judicial review following a detailed hearing the goes all the way up the ladder to the secretary and employees that don't get judicial review in a situation left open to potential arbitrariness and capriciousness which happened here thank you your honour's on if if  the the statute with respect to having one section that's that there's judicial review and then for the other in the other causes of acts or reasons for discipline that there isn't that  from i think at least the inclusion of specific directives to provide procedures under seven thousand four hundred and sixty three is important and if it's not a good if it's not followed then i think that the presumption i've talked about should be applied ok so that's all you're pointing to is the directive to come up with procedures and that they be followed thank your that because that leaves us in an uncomfortable spot which is what and greg may where i'm wrong which is whether a director bloss it you're correct or given the adi after the grievance examiner has r could simply say i don't care about the handbook and i don't care about any of the holes this guy has bothered me for a long time you are too close to my carnac and my it or whatever he's out and there is no interview whatsoever well in this instance under seven thousand four hundred and sixty three there is no judicial review i understand for the court the concern is protecting against unfettered agency discretion that's why this is a multi not home silly individuals that work with appellant to the grievance examiner who came from a different vision and then also the network director who does not work at the facility but the appellant he works in colorado so it's a decent realized process and that's part of the reason why it protects against unfettered agency discretion you have multiple individuals involved reason only works if the last person in the chain as fair and applies the rules the way the rules are supposed to be and answers why there's not a preponderance of evidence or something else and that person's not and there are indications here that there is at least a question about that as far as efforts to get this guy fired and then neutral people saying no he shouldn't be in fact he's a good surgeon and whatever else but still the plug is pulled as pulled from the wall i have concerns about whether or not this has been a fair process the doctor and what you're telling the don't worry about it because we've got this fair process in place where various people look at this so what if the director is unfair against director of lawson who was the system director involved in the initial phases of the terminations after the grievance examiners hearing and after the final decision by the network director who was director  secretary is arguing in this case the issue of the constitutional claims are comments failure to identify a waiver of sovereign immunity so that so much aces instructive here the secretary is not a certain that there is no review for issue against the network director the network director did follow the v a handbook that the a hammock requires a specific statement if the network director decides to to reject the agreement examiners recommendation and that statement is limited to certain grounds right if the grievance examiners recommendation is unsupported by a preponderance of the evidence or if it's contrary to law regulation or policy one only need to look to the network director's decision letter to see that position that dr thompson spills as though he took appropriate action and that the penalty of terminations is excessive and then the network director explains that he reviewed all of the evidence he looked at the grievance examiners recommendation he reviewed the there was a waiver of sovereign immunity that they just didn't rely on that's exactly correct and what any could be a bit of ins claim because here their claims are against the officials in their official waivers of sovereign immunity but he has to adequately plead that he also has to state colorable constitutional claims so again i would impart to the court i think part of the concern here is what does due process require process requires adequate notice the ability to have a hearing appellant never circs that he didn't receive adequate notice of his terminations the parties agreed that appellant received a three day twelve hour hearing have the ability to call witnesses cross examine the government's witnesses have the benefit of legal representation all in the framework of an adversarial proceeding due process doesn't require perfect terminology in a decision letter it doesn't require a result and sixty two relates to performance issues and those issues being disciplined related to their professional conduct and competency and so i think the distinction and how these two disciplinary actions are treated is key because when you're talking about discipline related to a physician performance that has an infinite number of implications the physicians ability to have a license their ability to be credentialed at other hospitals they're very ability to practice as a physician is an issue in stark contrast under seven thousand four hundred and sixty three dollars you're essentially treating these employees as at will employees because they're being disciplined for managerial failures  because opposing counsel indicates that these employees are i have permanent employment under the section and that they have a legitimate expectation of permanent employment that doesn't sound like an employer will some of them do it depends on the actual secretary provision in this case under the provision that dr tomkins was it was a point pursuant to yes he employer i think the issue here isn't a problem i mean that trying to undermine your argument that these other violations that are don't go to competence are somehow less important because if he's got an expectation of permanent employment are we dealing with a protected liberty interest well that is addressed through the statutory provisions yes your honor that's addressed to the secretary provisions that's why due process i appellant has to adequately plead plausible constitutional claims and so yes before this court we've talked about being a planet employee but if you go and look at his amended complaint he doesn't believe any of the statutes issued he doesn't reference seven thousand four hundred and sixty three he doesn't reference being entitled thirty eight employees he fails to plead sufficient facts to even show to this court that he's entitled to due process protections so again i think the issue become has adequately klieg he has to plead a waiver of united states sovereign immunity he has to plead colorable constitutional claims he has to please plausible constitutional claims there are forms of relief that may be available to him b pleadings have to sufficiently say this much in order for the court to have jurisdiction to review those those various rounds for relief well how can he do when his other action will mean it seems to me that all of the claims that he's making have to do with these officials behavior in their official capacity so i don't know how he could get a bit of ins action to be a waiver of sovereign immunity here so that case is still being briefed and litigated before the district court there have been no decisions in that case of course as secretary has argued that there is no bevins action but as far as mandamus relief that's something that still ha yet to be briefed by the parties and so that could potentially be a viable option depending on what the district court decides but it is still pending review by the so if conclusion i would assert that in light of comprehensive framework of comprehensive statutory scheme in the title thirty eight dollars it clearly excludes these this entire senate employs by the civil service reform act it creates an extensive framework within which these employees can contest certain thank your honour's with all due respect the nd lawsuit that we filed should not have anything to do with what's before the court right now because it's outside of this record however the court in the current lawsuit in this appeal and said that the case was dismissed without prejudice to refinance the case that we're there is before you now it was submitted on a twelve b one status only subject matter jurisdiction it wasn't brought on a twelve b six it wasn't brought on the basis of plausibility and we did plead it's we planned under the a p a we affirmatively pledge that you don't have to say the words waiver of sovereign immunity we pled under title five and said that those statutes were a political that's what we did in the pr