before we get too far into the case i'm hoping to have the opportunity now to just say a couple of sentences that i think will frame it up and perhaps show that this whole case was taken down a rabbit hol first is that everybody knew that this was one and not two when i speak of one case the two removals the department of veterans affairs when they issued the second removal stated that mrs ransome had appeal rights to the  that she had the right to start the title seven administrative process again when it was before the m s t v they introduced the second removal decision in support of their appeal and the m s p decided it was based on the second removal decision not the first you know the only the point if i could that i'd like to make is that when a case is the cited at that level the m s p and it was decided is one that the government does not have the right to come into federal court and say we're only going to look at the first case they don't have the right to do that under the civil service reform act in fact because o p m didn't do it nobody did so the fact that judge leon focused exclusively on the first removal shows that in fact he plainly are there because the only thing that was the one thing that was before the court was the case as a whole which was the second thank you out of realty but the list plaintiffs is the master of her own complaint and there's no question you could have when you when you first went to court you could challenged the second removal and anything else you wanted but the original complaint challenge homely the july two thousand and eleven removal that's how you  platter your predecessor counsel pled the case correct i think the fact is that that is why remove or leave to a med so that it would be clear so when you make an amendment that seeks to expand the scope of the case and says not only july two thousand and eleven but everything forward to june two thousand and twelve a year later and everything backward all the subsidiary decisions of the rich the i g referral and the administrative leave all of those are different it's different times different actors and our case our cases are clear that when you try to introduce a different adverse employment action that does not relate back with all due respect sir i don't think that's correct it was the same people the same i g report the same everything and in fact however you look at it in any event even if you look at it that way it wouldn't make the slightest bit of difference because the fact remains that even when facts occur after an employment action they are still relevant you know that your your your amended complaint sought to expand the scope of the case to include the investigation the administrative leave the withheld information the proposed terminations proposed germination and two terminations and those round the referral was made in march or april of two thousand and eleven write the proposed removal was may of two thousand and eleven the second removal decision was a year later and each of them on your account implicate different decision makers you complained with regard to the the referral to investigation you talk about the animus of mr is it day with regard to withheld information your complaint focuses on ms regan and with regard to the proposed terminations you're that's duncan so you're introducing different acts a different times with different decision makers i don't think that that's correct with all due respect sir i think first of all i don't remember if those were played and second separate accounts or god but what i do know is on this appeal what we have focused on is the first removal of the second movie and that is what we focus the appeal on that that is where the error was committed below those those are about a year apart so why wouldn't they fail under our test of different time well i'm looking at this if you know the circuit i don't know exactly how to pronounce the name but i do know it was written by judge ginsburg and it was not the supreme court decision which is a similar name but it's the other one where he clearly distinguished between the case of generic drugs and said in the first case there was a challenge based upon the holder of the patent of the non generic drug to misuse the litigation and administrative processes to run the non generic the generic drug maker out of business yeah that's my are correct and and judge ginsburg says if you're if you seek to challenge different conduct the amendment doesn't relate that i don't agree with that sir what it says is that when there in that case there were different claims at issue that was what it turned out was the conspiracy was the second cla and the first claim was on the use of litigation administrative processes as a sham to try and drive that person help in the mire case but one of the biggest reasons that the that the second that the amended complaint was not accepted was that it included more defendants it was a different legal theory different facts and different defendants that was the distinction in the mire case are different claims here  nation only in the first complaint and now you're seeking to introduce discrimination and and three counts on what happened after the decisions before the n s p know the decision to go to a jury would have be permissible for a jury to find retaliation if someone was trying it with three cause of action let's say three claims against them two of them were one comes back and one comes back is based on a credibility determination that is balancing the credibility of this ransom against mr sides the judge then said there's no evidence of any retaliatory intentness christhood just sat through two days of an m s p be hearing when she was charge with racial discrimination and retaliation she had every motive in the world and so if you brought that back to a jury when you have plainly plainly that the basis was not there for the original decision when the way every case of discrimination retaliation comes up a qualified protect someone to protect that category loses out on a job where it's not it's not filled and six months later it is filled with somebody who's completely unqualified for the job you could have a circumstance where the person they did missions of racial discrimination after firing a person use the n word about them but it happened the next day it doesn't make any difference that the evidence comes up the next day and whether you treat it as one retaliation case with evidence or as we believe one retaliation case based on the final decision in the end what the judge did below was a complete abus discretion that was that we say should be reversed by the court first why it involves different alleged conduct i believe mr solomon just argued that circumstances occurring after the july two thousand and eleven decision while the matter was before the m s would be raised by him to support an argument that the second removal decision was retaliatory because mr crist was in the m s p hearing listening to the evidence and following that initial february two thousand and twelve decision at the direction of that panel issued a new penalty determination in sounds like palin is trying to say will that contemporaneous are the close in time nature of that was ever further evidence of more evidence of retaliation as to the second removal decision well none of those facts are in the first complaint the first complaint very clearly is limited to the july two thousand and eleven removal decision so very clearly the conduct on which a claim of retaliation with respect to the second removal decision would be based is different from the conduct identified in the original complaint amendment limited to one of the issues that's focused on in the brief which is the you have the first complaint as it is which is limited to retaliate and the adverse action is the first removal and hypothetically suppose that the proposed amendment had said all i want to do is add a new count that the first removal was not only retaliatory but discriminatory could they do at least that much well again to emphasize that is a hypothetical because the show me complain was the kitchen sink approach that was presented to the district court but on this record i would say no for three reasons first same same time same conduct different motive diff but i would s seems to track more closely to the adverse employment action than to the motive of the act or what but underlying the relation back concept is the issue of notice the underlying question is whether the original complaint adequately notified the basis of liability that would be advanced and the second reason i was in that your honor is the one judge here you pointed out from the johns first reaction decision where the court the two events there were two different that were the subject of a complaint there was a previous one and a leader where is just cats this is hypothetical to use it is just one question is would the jones theory that the omission of the racial discrimination complaint from the original complaint effectively notified the agency that they would pursue would that apply and situation where there's just one  why well i would have to refer the court to the record here which is a very bare bones original complaint that is twelve paragraphs long and when you omit the venue parties it's essentially three maybe paragraphs a factual assertion and i would submit that in that context after such an extensive proceeding before the m s p be that the jones observation is after here but there's also a third reason which was alluded to in  reply on page nine when a palin said the original decision july two thousand and eleven was remedied and therefore there is no issue to  pursue because it has been remedied now in the adverse employment contacts which is a pleco to a race claim this course president taylor her small would hold that a remedied initial removal decision would not be actionable in contrast the original complaint that proceeded through summary judgment only asserted or retaliation claim based on that original decision and under the burlington line of of authority because of the different tast for material materially adverse action in retaliation that that is not it's a different question there so although that argument was not raised in defense opposition below it's been alluded to here in a palace reply and would be yet another reason why amending the complaint to add a complaint number one strict liability complaint number two negligence relates back right so why why why isn't this a can to that yes retaliation is different from discrimination but if it's it's a different motive but that's more like a new legal theory than it is like a new adverse employment action or  occurrence in the language of the rule that the case law that talks about new legal theory it seems to me is it goes in different directions based on what's been pled but in the original complaint and i would just submit that here this is such a bare bones original complaint that i'm on this record those want those cases would not be a political because those had a much broader foundation to build upon if the court doesn't have any other questions on the addressed is this is a case where an independent no i g or independent i g investigators determine that miss ransome popped a subordinate on the head those were her original words lie to investigators and manufactured a claim that the subordinate who made the complaint about her was mentally unstable and a danger to the office add to that the fact that the the person who referred the matter to the i g for investigation dr day had just promoted miss ransome about four or five months earlier and under the towel and waterhouse line of authority there is a the problem with what mr simon said is it's not really the way it occurred the i g report was concerned with one charge it was about an assault and that was avoided for the simple reason that there was no proof it came out  truthful in her response to the ensuing investigation two different things there one is that the agency did not provide any assault charge and yet and the government can't rely on that when it comes to court now because it doesn't have the can if we're talking about the first no the decision you know the decision that was that the m s p be supported the removal because of the one charge which was in this representations suppose we think that the case is about the  two thousand and eleven removal decision or not decision was made the decision maker had before her an independent awake she investigation th i'm sorry we have answered this are done the best they can i understand if the court's not persuaded by it but i can't say this any differently and i've said that facts come out that happened after an initial decision  talk ok so let's assume for the sake of argument that you can challenge the second decision the second removal decision which was made after the administrative proceedings correct ran their course even at the end of the second round of proceedings the decision maker had before her a sustained charge that your client why to inspector an inspector general investigator in order to cover up a trying to think of a neutral word other than a eight touching that was substantial though not criminal of the two things of that is that the i g report didn't find that it said it appears to be false that wasn't the point the larger point is that the decision the second time be evaluated the relative credibility of mr sites and this ransom in coming to that conclusion and she said she observed the testimony of mr sikes that he appeared to be genuinely troubled and that's why he didn't file a report and that's why he didn't tell his kubiak that he was hurt and that's end point is and i'll be done with that the point is that that's based on a credibility determination and that determination can be made on s