argument in that case i take it i have your honor it seems to me that at least for two of the justices on the one who wrote the court it did make a difference that they weren't dealing with the jurisdictional issue that this case arises right that was that that was an important to consider the issue there is no other circuit court precedent on  powell in this court and this panel has the power to recognize that powell is no longer good law this court is not often reversed by the supreme court but there are examples of panels of this court holding that a prior panel opinion is no longer good law in light of an intervening supreme well your honor on that point the difference between jurisdiction and procedure in the context of the m s p visa system is actually somewhat electical the government described it in class as quote difficult and unpredictable and in city of arlington just a year later the supreme court explained that it's usually a waste of statutory textual basis for distinguishing between timeliness procedural rulings and jurisdictional rulings that mean that the m s p be could have never taken the case in the first place if i thought that then and i think you're talks about actions that may be appealed so that's the key text yes and then if you're looking at census talks about an action that may be appealed it seems to me that the time for judging whether something can be repealed is at the time of the action and the difference between timeliness and jurisdictional rulings is that at the time of the action the jurisdictional one could never be appealed because by hypothesis it was voluntary you could never be appealed but at the time of the action it can be appealed as you can see procedure is just if something happens later somebody fails to follow in time or somebody has only long enough to to file but it actually may be a few so if you look at the time of the action it seems to me that the statute actually supports the if i'm understanding you correctly on your focusing on the word action here to a certain extent the government has all the new to that in its brief i agree three different argument one of the problems of our approach is that the boards dismissals you not necessarily concern the type of action that the employee has actually so even under that approach the interpretation doesn't quite line up with what the government wants to do here but i guess i could at least reach the following conclusion based on that approach which is that timeliness rulings which is what clinton was about and what time was about a lot of procedural filing based entirely on the employee's allegations without regard to how the m s p would ultimately adjudicate those allegations congress in other words sent to the district court next case is based on where the employee had alleged the elements of seventy se no not i'm missing something i know it turns out that the board disagree with him and of course mr perry has a colorable claim that that was incorrect but my argument is that regardless of what the board ultimately thinks of his allegation we must be able to determine whether seventy seven  suggestion that judge bryson's attempt distinguish that or to majority was incorrect it's inevitable as the federal federal circuit has recognized that the jurisdiction and the merits will be quote inextricably intertwined i think that that's a quote from a federal circuit opinion and i certainly were in this case right in the because well you are i'm sure my friend from the government can speak more accurately they need the entire universe of m s b appeals but my understanding here is that seventy seven are three v two sends cases of discrimination subject to the provisions of seventy seven and two says here something some of the federal circuit in the discrimination cases to the district court what's the reason for that the reason for that is that congress wanted the district court to adjudicate in the first instance difficult claims of discrimination and it makes sense because the district court has the capability really just looking board dismisses any excuse for lack of jurisdiction those underlying discrimination claims do not simply die rather they get routed back to the employing agency to get processed through the regular ito procedures when the employer reaches the end of the line in that process he goes to the district court meanwhile in the government's view of the employer should be appealing to the federal circuit the m s p vs dismissal of his case for lack of jurisdiction i dismiss all that is often inextricably intertwined with the merits of his underlying discrimination claims so we have here is an employee often a pro se like mr perry is here forced to litigate his case in multiple different forms at the same time none of that can be right and violates the supreme court's repeated and recent  conducted or configure the jurisdictional inquiry in this case doesn't give every benefit to the plaintiff and there's things that need to be proved for jurisdictional purposes and it goes beyond what we normally think of interested in at least in the courts but is there anything in the statute that prevents the board from non frivolous allegation standard followed by a preponderance of the evidence standard to be to be carried out hearing so the does seem anomalous but i don't is there something in the law that prevents the board from configuring jurisdiction in a way that's just not unfamiliar to us in terms of the way jurisdiction usually conducted that just happens to be the way the board has to do it but i believe i cannot think of anything in a law right now that would prevent that but the board has has regulations has has probably get a regulation to say that the applicant the in the petition or the employee has the burden of proof at this stage i'm not aware of any plans to change those regulations are challenges to them pending at the moment  in this case to that that is to say the government has asked for transfer to the federal circuit not for dismissal and we have asked for transfer to the district court but to the extent your honor is concerned about that the interests of justice here plainly support transfer there is no  this court at a time when it was time to file here time to file in the federal circuit in time to file in the district court and it's possible that if you were to dismiss he would face a time in his shoe in an attempt to refile and you know justice standard sort of accounts for the situations by saying that well then the court is free to say that's not in the interest of justice but i take it your argument would be this isn't that kind of case because there's actually at least some basis for enough of a basis for understanding why even mention the central argument below and under blackletter principles of administrative law that is just that's just totally wrong no matter what you think about the record as a whole the board cannot just ignore mr perry's central allegations here and that is what it said and so what he  well o p m decision to appeal would be because there was an error in interpretation of civil service law as it is about their would be and the original purpose of the federal circuit and of the civil service reform act in the first place was to actually promote uniformity and consistency in the jurisdiction of the board decisions along with other agencies within the rebels or federal circuit jurisdiction and so in order to promote that sense of i think based on seventy seven zero three d one which gives it the authority to interpret civil service law i do not believe the discrimination laws will be covered within that and i think that one of the statute used to give o p m to the right to found that in fact they were forced to quit for whatever reason they would be adjudicated as a removal under section seventy five thirteen they are guaranteed certain procedures for any removal and if they are found to acquit they will not have received those procedures in the automatically be a due process violation and the opponent will have won and so they will not actually be aggrieved by the board's decision and not have a right to appeal so that in those circumstances only they actually would not even receive a right to  because that claim would probably be dismissed actually for timeliness and underclass knew that claim to go straight to the district court but the other claim regarding the constructive discharge it would not be a decision of the board so if there is a problem where the type of removal regardless of procedure is not one that may be appealed such as a national security remove or that's an action which specifically cannot or may not be appealed to the board and therefore there is no jurisdiction  so basically because the statute we felt was clear and and clark herself was clear and clocking excluded jurisdictional dismissals from this decision so there really is no need to go further than that and with it but when and if you knowing based on the argument here you can say that it certainly seemed relevant yes and is the argument that you're making does it stand at least in substantial tension with the argument that the government was the federal circuit ruling in ballantine from thirty years ago and now we're arguing based actually along the lines of what the court found the clock near which was it to find a mix cases only involving action serious enough to appeal to not an appealable action and it's the board's own precedent in the federal circuit precedent and i believe the court of claims authority that allowed resignations to be construed as removals under certain circumstances but until that resignation becomes established as an involuntary resignation it doesn't meet the terms of the statute and can't qualify as an excuse you can ask this question which is getting back to the way that i was trying to construe statute and there i know that your counsel pointed out that there's a potential issue with seventy seven and i understand that but is there a reason that the government decides that or maybe you think that argument is dispositive but is the reason that the government doesn't construe may appeal in the way that i was suggesting which is that if you look at it at the time of the action the question whether there is jurisdiction turns on the nature of the action so either you have the ability of people or you don't but if you look at in terms of time that's based on things that happen after the time of the action so on the best of those you may appeal it is just something might happen later on because the parties left on its rights are because of either waited too long or didn't wait long enough that we at the time of the action we don't know and so that  situations in which there can be waiver you could turn out to have the ability to take the appeal if the board can take the appeal but i guess i'm trying to make a different point which is does take waiver out of your question the question is at the time of the action can it be a f and just because things that come along with respect to time of us later on we don't call into question that at the time of the action that can be a field for us for jurisdictional things at the time of the action we know whether or not based on the nature of the action and i think when we reference wilbur we are trying to argue something along what you're stating right now which is that certain actions if it's kind of the action maybe you peeled in certain actions right now a ten day suspension may not be appealed but the twenty days suspension may but i guess but the rhythm of the way i see a distinction in the reason i'm asking this is because i think there's probably something wrong with this which is why as i understand it you didn't make the argument but timeliness considered for time and its rulings at the time of the action we don't know yet whether there's going to be a time the appeal to something that is so the person who's supposed to take the appeal can just wait too long now i thought your response to that was you have it back in the equation so it turns out it still can be appealed and i guess what i'm saying is are you care about waiver the waiver argument actually originally rose from the majority in corto right where judge doesn't believe that an action which was appealed sixty days or ninety days or one hundred twenty days after the original adverse action may not be because the question is could that have been appealed at the time of the action and at that point we don't know whether the person to go in sixty days ninety days or one hundred twenty days the question is at the time of the action can it be appealed and the answer is yes so we never even care about waiver because we look at it at the time of the action and we say yes it could have been appealed that's the technical distinction now there must be something wrong with that but that when i read the statute that's the way i look at it i have not certain i actually see anything wrong with mallette i think was asking a question that goes to the core of this case which is out what point in time do we decide whether the elements of seventy seven zero to a one are satisfied and there is an answer to that question if we look at the rest of seventy seven to two it's clear that you have to be able to answer the question about seventy seven into a at the time employee files the case of which point all he has are his allegations so if the employee claims to have suffered for example an involuntary determination and claims that it was motivated makes no sense clocker is consistent with that interpretation as clinton or flex the made up he'll languish in seventy seven into a want to say is not defeated by an ultimate or decision that the appeal cannot go forward for any reason procedural in that case or jurisdictional what i'm arguing here as a result there's really only one way to understand the statute and to understand what makes cases and in fact it is consistent with the way it makes case is defined in the political regulations it's a case in which the employee