claims based on statute of limitations taking the first issue collateral stoppel there's several elements that must be shown before collateral stoffel would be applicable one they have to be identical issues between the proceeding that's having the collateral facts and swell as number two you have to have final judgment or determination on the merits of the case three you have to have pretty between the parties for you need to have a situation where injustice would not occur from its application and fifth you must have access to judicial review now there's several of these issues that are before the court but the catch all is  injustice and that's definitely present in this case but there's two more specific of the elements that go directly to the points of the case that i understand your client's the general description of your coins claim of white and black and that's the it has to be identical questions that were resolved there's two independent reasons why it's wasn't the identical issue one which you've addressed already the personal appeals were decision expression states in the findings that they're not doing a comparative analysis which is the essence of the discrimination claims all of which mr davis was making so clearly they weren't engaging in the same question now along the same lines but somewhat distinct is if you look at the analysis of the personal feels for the basic question that the determinative factor was whether gordon white his supervisor had signed a piece of paper and put it  questions were presented if they weren't and so it was aired through the pie collateral estoppel the second reason is also that there was no judicial review i think that reason is just as black and white with your response or are supposed to fold first what this court stated expressly is it's not administrative review but it's judicial review and the question really comes down to who are you having a look at what happened is another executive branch started to the third circuit crossroads case stating that it's of its chain of eight ability to appeal so that you can get into the court system have an independent body look at what happened and so i understand the state's argument on that point but it doesn't square with the decisions from this court that say judicial review and it doesn't square with the concept of the need where there's a statute that says you can't have judicial review and there was collateral stoppel apply so frankly did as a come up where you would even need to argue it so another point on the during a proceeding and he claimed retaliation after making those there was an administrative review there and it allowed for him to go to court and in fact he went to court he went to kids that secured court appeal the decision so the facts of the shoemaker a show that there was judicial review it was exercised importantly the state supreme court didn't just put that in the fax section it was part of the crucial piece of analysis to determine whether or not collateral stoppel should in fact apply in that case the court said here shoemaker have the ability and acted on the ability to seek judicial review that's not the circumstance in this case either this court or the washington courts should under the prior precedent apply collateral sto barred by the statue of limitations now there's a distinction obviously between that title seven claims which have a three hundred day statue of limitations and all of the other claims which have a three year statute of limitations i think the argument that the three year statute limitation is cost of action should be dismissed on special occasions ground is dealt with easily october twenty second but it would be actually the state of washington is decision with the personnel fuels order which was not final until december  eighteenth of two thousand and one which would incorporate and consume the entire reallocation request was made in february of two thousand and two and everything flowing from that it will incorporate when gail bloom star refused to recommended denial of his request for reallocation it would incorporate gordon white's decision on august fifth of two thousand and two to recommend district court was not persuaded by that argument and didn't find that those were barred the title seven claims the finalization of the personal feels for falls within three hundred days of the formal so those are discreet actually go with them and we filed a motion and we would also request that the court remain for a factual determination of when questionnaire was filed i understand that this is a somewhat unusual request but at the time that mr davis was responding to the summary judge of option the law in this circuit and the e e o c had interpreted title seven to allow for every time you're paid less than someone who's doing the same work based on your argument is to ask this court today to affirm summary judgment and dismissal of all claims i'm going to focus my attention on the impact of the recent live better decision specifically as it relates to the title second claim answer your questions and with time that the claim is entirely time burton and importantly the total seven claim is not against the individual defendants and so none of the individual defendants participation in an appeal process to include even arguing before the ninth on this record i don't think it's a new decision what mr davis was doing was simply renewing the same old or requests based on the same evidence nothing had changed he never asked for nor is actually assigned higher level duties although you continue to greeting and in the record that he is in fact indeed forming planner for duties nobody with the exception of a single deal p department of personnel individual ever agreed with them and what the record clearly shows and n c r five thirty nine is that others who perform plan of three duties similarly asked to be upgraded and for the reasons given also to randy davis they were deny they were denied because number one they weren't performing the higher level duties which are senior level duties of individuals who can speak for the director of the apartment of ecology and make policy and there was no business need in fact what the record clearly shows is that the number of planners h reasons were who the people were that justified the upgrades to e p for about that time ecology had an upswing in the need for the higher level planner for duty's that was about a year before randall davis started represent but that's not accurate her original upgrade approval to be a floor thing she ad again and again it doesn't i have that when randy davis again asked you know to and college you once again say on august fifth so to know your plan or three just like you were before nothing's changed that that isn't then re anything wrong with of course looking back five or seven years in terms of equal protection analysis anything wrong with looking back in the past to people who've been reallocated for me three d p for even outside the statute period i'm not aware that he actually filed the equal protection claim but if you were to examine the record here i i actually thought we did i'm sorry it is a date but it's not the last one in time so i think like to start with the answer like that i think it would be easier to clarify a couple of the pieces in the record if you look at like to quote the court to the s t r seven twenty three you'll find that that is when the bone jurors signed reallocation i mean it's an allocation of positions where the state system works you may move from one branch to another and when the state a tate of asking a question about when's the last someone's been allocated she was after after he was denied a couple days later so there's a date stamp of august thirteenth two thousand  because even though it was put into motion earlier it didn't become final until that point in time