no longer good law you argue wind that exhaustion is not jurisdictional as you're arguing to us but what are your best equitable defenses that would that would apply at the hold that receipt of a right to sue letter as a condition precedent to a title seven claim rather than a jurisdictional prerequisite and that's a one nine hundred eighty two decision and that he running long it equitable power to tool an excuse for justifiable cause a late filing so is there any reason that there wouldn't be a basis for a court to excuse and an early adverse action even under i know there's a little bit looser standard for retaliation claims versus a discrimination claims in terms of adverse actions but how is i mean as i say he got a memo that basically says you know don't leave patients alone  in the context here of the retaliating was particularly home we're dealing with a position of primary care physicians who whose reputation and profession stature very important to his this meeting with a whole medical staff he she communicates just a management and these are very very damaging allegations to a professional physician depending on something you know some sort of i mean there may be other claims if people are maligning him but he has to suffer employment action and i know that it's much broader than it used to be as to what some tangible enjoying and pullman detriment but he didn't lose any pay and he didn't not he didn't he and i thought that was stipulated that he didn't actually suffer at his employment in terms of any of the kinds of things he didn't get demoted he didn't lose pay he didn't lose of benefit of a particular shift is a doctor he didn't lose actually suffer in employment detriment well i don't about his actions doing his employment he's a physician finis patient it's all about he needs his work as a physician employed by the v a created for these patients and all we've got to show you you people to complain about you know from a nation anything you can point to in the case law from our circuit or any other it's is this kind of sort of like a public embarrassment i guess or humiliation is how you characterize it that that counts that that goes to the subset of adequacy of the claim is there anything about this deadline issue that has some sort of a nature that goes to whether or not you deserve to win i don't think so i think it's strictly a legal question is it in two thousand and thirteen i don't really know how it could be any clearer but the time is gone and appreciate it very much a court says the united states attorney katherine dance for the secretary of united states department of veterans affairs to answer your question about the district court not getting to at equitable reasons with regard to waiver or stop will put in use those words but that's essentially what we're talking about the district court didn't address waiver or stop all or any equitable principle because it wasn't ready is quite frankly the claim that dr story did not raise any issue in fact until the reply brief was found in this court did i see anything that looked like the reason for filing early an equitable this wasn't raised before first of all because it was the the original complaint that was filed proceeding in this matter was not served on the united states there are some summons in the record they were never starr there's no indication that they were served on anyone but obviously the v a became aware about it because there you know jay decision later in the same month that he files the complaint in district court there's an a r j decision this says we're dismissing you your your ego complaint because you file the complaint district court so obviously the v a found out about it at some point it was it wasn't served in the united states until several months later when counsel enroll for d in fall the second amended our first amended complaint so at some point the v a found out about it but attached to that original complaint is a letter from the v a telling dr stark precisely when the one hundred eighty what's the harm if it disclosed ahead of time even if they hear about it later what's the harm well you know you could say what's what's the big deal today is what's a big deal i just said you know i just see sends him a letter and says we're not going to finish our our investigation we want extension that's in the record but we're not going to finish the investigation the two days whether it's two days or thirty days or one day it deprives the agency of the opportunity to complete its investigation what if it would have of completed its investigation found for dr strong that's possible we don't know we'll never know but for whatever it's worth it deprives the agency of that opportunity as the investigation is going to completed within two days well apparently that the latter that's attached to the original complaint is dated in july the the the the complaint district court was found in all the sac at and the one hundred eighty days would run on august fourth so apparently it comes up i mean it's obvious that it comes up on someone's calendar and they realize you know but congress provides one hundred ninety days so the agency is doing what it's supposed to be doing and when it realizes it came in and get the investigation complete at least in this case it sends a letter saying we can't complete it and they can't unilaterally extend that  puerto as based on brown versus g s a brown versus g s a was nine hundred seventy six quarter was nineteen eighty one that's to me that i think that's the earliest decision those  decisions the supreme court decision of brown nor the panel decisions and tolbert reporter have been overturned so the district court followed what was the law this circuit and the supreme court now this court this and this goes to your point of prematurity versus late filing in this case we have prematurity which counsel refers to interchangeable and they're not interchangeable and because we have sides zipes tells us that they know the deadline for filing is is subject to equitable telling but it goes on to say we haven't decided whether the exhaustion requirement is subject to equitable looked at the title seven skiing the administrative scheme in the judicial scheme and i said this is an exclusive remedy to file suit against the a federal agency and that's how they got to  cases including even the sturm and aymer on the case that came out this fall there's three or four recent supreme court cases it's take a much more textualist approach and say generally jurisdictional statute should say it's if once a court found it was it was without jurisdiction it couldn't do it couldn't go any farther that is the court did the right thing there i mean i have no jurisdiction i can do anything further i have no authority to act but even had the court made some sort of alternative finding again i go back to this court there's nothing to base equity on in this right on this record there was never it was never addressed in the district court it was need to send it back now i don't think you need to send it back in fact then somebody needs to address it if if you don't think we need to send it back and did you brief it well the retaliation claim i said the district court did not address those those issues so i did not specifically address them with regard to but let me one thing on the retaliation calling him back from a q which is a is sided in the government's parade the it was subject to tolling but they affirmed it on twelve day one so even even if we if you find that it is subject to activity it can be affirmed based on the record but that's a if you find there's there's nothing to support equity with regard to  the retaliation going well there's no adverse personal action on either retaliation or race none whatsoever there's absolutely there's not a scintilla of evidence in the record that supports dr stories claims that he was retaliated that there was any adverse personal action taken he cites ninth circuit cases it's a well and undeserved performance review can be the basis for an adverse finding of adverse personal action but there is no evidence that he suffered an adverse personal option in fact the evidence is exactly the opposite he continued to work for the v a he continued to receive the same pay he continued to receive any bonuses that he was entitled to under certain quotas there is absolutely nothing that he suffered as a result of this action or any alleged race discrimination claim the record is devoid of any enemy an argument in your brief well i did on the race discrimination claim i know but not on the retaliation well the district court didn't reach it but it's strong and i could've cut and pasted from my motion for some of the summary judgment there's there's nothing there's nothing in the record to support an adverse person yesterday afternoon on my way to new orleans i received a twenty a jag a brief from council that i would know only one case is potentially a new case the rest of them are fairly old  cases i noted i was able to do a limited amount of research last night and i noticed that like for instance coke is an equitable telling case it's not a prematurity case and so i haven't really had an opportunity to review those place cases carefully in the a van i've found a need to respond to the twenty eight day i would ask for that opportunity to do so well cases no no i don't but i received debris from i understand i just want to make you respond to it well i guess you don't get to respond i want to make sure that normally i know when you read the rule the twenty eight the federal rule says supplemental it doesn't say new cases but this court has generally generally means but it's helpful as we saw in the earlier case today if you doubt talk about the case to talk about it do you have any comment about our maybe or in a fill case for example that's the one that i want to want to address  unable to to review very very well that that is the noted the general trend in that case towards away from jurisdiction cited hammer and other places i want to i am understand and i can't argue there's that that that trend doesn't exist in this court and all the other court but the point is the district court followed did the right thing and follow the law in this case so the the law of the circuit just to clarify you they need to be i mean i don't think that he was allowed to say with the cases said just tell us the names of the cases if the cases have been overruled but i actually i'm going to let you each follow twenty eight j on that other case that i cited in waco so if there's something that needs to be added we're going to loosely allow a twenty eight day for both sides in this case but it needs to be done is today wednesday it needs to be done by monday and i guess i'll clarify th mean there was at least some explanation of the case very very brief and i do the same type of thing that opposing counsel did on those cases of ok and there's only one i also address in a short in the short  form this other case that i cited and asked in a loud twenty eight j on so but i'm not expecting we're not expecting new briefs or anything of the sort or new arguments that haven't been presented mean that's what the chief judge has indicated having said that at a minimum i would think that the government gets a chance to respond ok well the government is going to have a chance to respond and there everybody else and you also have an opportunity to comment on the other ok thank you thank you very much we have your argument was nothing left for the agency to do there's no evidence in this record that there was something the agency did and did not get to do they haven't insisted destroyed cooperated with the agency and for he submitted to the counseling situation as a as a physician in need to maintain the stature of his reputation talks about the meeting to september sixth in response to the early questions of the court what he done in they are on september seventh a ministry personnel ordered dog royd to not have any breaks during the day could have a lunch break a coffee break or anything between eight and four thirty investigation or be far too nurses that had been talking about the about the allegation of abandonment of a patient and there was talk about among them are nurses according to the  results of this investigation and it's absolutely insulting i mean absolutely in solving this guy went to his colleagues leaving its duty station leaving a patient in a room vesting with medication what we have here we have a deterrence we have a potential for damage his reputation is damaged to promotional opportunities and i respectfully submit that there are genuine issues of material fact for court notes that twenty eight the twenty eight jailer filed an april third does contain comments about the cases such as in pinkard this court held that the subsequent receipt of a right to sue later cures the defect with respect to an early filing accordingly the government is allowed to respond to the statement the statements that are listed that are not just the names of the cases ok thank you very