permission i'd like to quickly lay out those issues and the claims they relate to the first issue is whether the district court was correct to dismiss the discrimination claims in ms punches district court complaint on election of remedies grounds based on its conclusion that she should have raised those claims before the merits protection board those claims were first filed in the sixty two complaint with nasa and they involved her performance evaluation and the denial of her transfer request the second issue is whether the district court was correct to dismiss her civil service claims on statute of limitations grounds based on its conclusion that those claims belong to district court where they were subject to a shorter thirty day statute of limitations those claims were first filed in her appeal of her removal to the merits protection board and concerned her remove all both of the district court's conclusions were wrong i'd like to start with the election remedies issue and then turn to the transfer a ship on the election of remedies issue ms punch was not required to raise the discrimination claims in her e o s sixty two complaint before the m s p v because the only action before the m s t d was her  the discrimination claims relate to separate earlier actions and we know this is true for three reasons the first is that nasa itself has already said so when it initially processed her the yo sixty two complaint the second is because the statute clearly says so when setting out the claims the merits and protection board would have had jurisdiction to hear and the third is because the relevant administrative agencies have already rejected the rules that nasa is advocating for here on appeal on the first point nasa itself has already enforce the election of remedies regulations that its warriors now invoke on appeal and before the district court this can be found and may seventh two thousand and fourteen letter that nasa issued when it initially accepted her complaint and you can see that a page seven sixty five of the record if it's easier to access it's also basically reproduced a page six of our brief in that letter nasa looked at the because she had already appealed her move all to the merits of protection board essentially it said this claim concerns the same matter that you appeal to the merits of his protection board we can't process it if you want to raise it take it to the merits of the protection board but it allowed the two claims that are at issue in her district court complaint the claim related to her performance evaluation and the claim related to her transfer request which were claims one day and one of the sixty two complaint to proceed through the normal process for administrative complain which is processing by nasa followed by an appeal to the e e o c followed by a complaint in district court the second reason we know that there is no election of romney's problem with misc punches just record complaint is because the statute that govern when the merit system protection board has jurisdiction to hear discrimination claims clearly provides that the merits of the protection board would not have had jurisdiction to hear these two discrimination claims in other words even if ms punch had sought to take those claims before the merit systems for to action board it would not have been able to hear them we know this is true because ordinarily the merit systems protection board does not have jurisdiction to hear discrimination claims those processed for federal employees first by the relevant federal agency and then by an appeal to a specific office within the e e o c there is a limited exception to this rule and that is when and it merits of some protection board already has the jurisdiction to hear a claim under the civil service reform act related to a specific and pointed action that it also has jurisdiction to hear a claim when an employee alleges that quote a basis for the action was discrimination quote related to a specific employment action it can hear a tagalong claim that that same specific employment action was based on discrimination and the merits of his protection board's jurisdiction is very limited to a specific series of serious employment actions and you can see this for example in five u s c four three zero three which is the statute at issue here which says that when an employee is removed or demoted for an acceptable performance the merits of protection board could hear an appeal from that action but no statute gives the merit systems protection board jury stiction to hear a claim that an employee's performance evaluation violated the civil service perform act and no statute gives the merits and protection board jurisdiction to hear a claim that an employee's denial of a transfer request violates the civil service reform act additionally under a theory with what would have been the deadl correct you did right sorry about your point you know twenty five raised a claim that her placement on a performance improvement plan was discriminatory and that happened even earlier than the claims at issue here and the same arguments apply the merits of the board would not have had jurisdiction to hear it there is no election issue with it but that claim was dismissed earlier at the motion to dismiss stage so it's not at issue here but it doesn't affect any of the issues in this case so you can there are of course the civil service claims which were transferred from the federal circuit which which i will address when we discuss the transfer issue well just for my own information have you represent him as punch through out these proceedings she was represented by counsel yes when did you come in i came in for this argument ok well you certainly seem to know about the shrewd rules ok ok so just to close the loop on this point about the statute in merits of its protection board its jurisdiction is action based not fact and that explains why the third point is correct which is that the rule that nasa is asking this court to adopt you can see this at page twenty three of its brief is something along the lines of when the facts of a discrimination complaint are intertwined with the facts of a merit systems protection board action the employee must raise those claims before the merits of the protection board and that is not true under the statute and it's also not true according to the relevant agencies with the with expertise in enforcing these statutes so you can see this in the decision that cited at page fifteen of our brief well i think i don't think that's exactly what they're arguing they use the removal violated the civil service reform act and she argued that her removal itself was for talia tory so when she appealed to the m s p she did have a tagalong discrimination claim what the waiver issue came up when she appealed from the m s p b to the federal circuit so employees often which is wrong i'm sorry that was wrong a plot appealing to the federal cert well the federal circuit said it was wrong that federal circuit said it was wrong not for that so employees often do what ms punched did which is they have a discrimination claim that is based on the same employment action that their civil service claims are based on and they often want to go to the federal circuit because that is the court of expertise and hearings civil service reform act claims and so what employees do and this is pursuant to a local rule of the federal circuit has local rule fifteen c is that the employees waive that their discrimination claim filing a form with the federal circuit and they agree to proceed only on their civil service reform act claims and that's exactly what ms pledge did you can find that for a page one three three seven of the record so what do you do with the federal circuit saying congress should not director contemplate bifurcated review of makes clase mixed cases so what the federal circuit thought miss kotch did wrong is that she took a sheet because the the federal circuit thought that the claims in her district court complaint that arose out of the e e o c sixty two complaint included a claim that her removal itself was based on discrimination and it said even though you're not technically seeking review  systems protection board's decision to separate for him in the federal circuit and the district court you are raising essentially the same claim that you raised before the m s p p in district court and the reason the federal circuit thought that i think it's because that's what nasa told it was going on are you are you arguing that we should say the federal circuit was wrong i don't think you need to say the federal circuit was ron i do think you need to look at what the federal circuit was told by nasa and the evidence that it had in front of it when nasa moved to dismiss before the federal circuit it told the federal circuit that she had raised a claim that her removal itself was discriminatory sensually appointed to that claim y m c a that we discussed earlier that nasa dismissed and it also attached and earlier version of the may seventh letter that we discussed earlier it attached a march seventh letter which you can find at record seven sixty one and that letter makes it seem like all of her claims word accepted for processing in the sixty two complaint but that's not accurate because of the may seventh letter which specifically dismissed her removal basically so i think what the federal together she is attempting to bifurcate her claims but what we know now based on the clear record is that no claim that her removal itself was discriminatory was ever processed through the e e o c sixty two complaint and that lends credence to what she has said consistently for the federal circuit before the district court and before this court that she was not in her district court complaint attempting to pursue a claim that her removal itself was discriminatory so now we've moved on to this issue about the transfer and the reason that's important that she has never raised or attempted to pursue a claim that her removal itself was discriminatory and just her court is because that claim is what gives the district court jurisdiction to hear the civil service reform act claims so the relevant statute here is five u s c seven seven zero three b two and it says that when you have both the civil service claim based on an action and the tagalong claim that that same action was discriminatory the district court can hear both of those cla tagalong discrimination claim and that is what we are arguing here and what we have consistently argued throughout the federal circuit has exclusive jurisdiction to hear a pure civil service claim so you so you do want us to return it to the federal circuit or what absolutely we want you to return the civil service claims to the federal circuit you have any do you have any authority what whatsoever first saying that we can disagree with the other circuit on what it thinks us to be transferred yes your honor  this court recently in january i think transferred a patent case back to the federal circuit under the same transfer statute twenty eight u s c sixteen thirty one on the grounds of the federal circuit was wrong about its own touristic about it and i'd like to just make one one additional point on the election remedies issue if i could just go back to finish up a thought that we were discussing before we turn to the transfer are factually intertwined with the m s t be action you should send your claims over there and the m s p told the e e o c to stop doing that because it didn't have jurisdiction to hear interrelated claims and less the underlying action could be appeal here and to allow that you know sixty two claims in her district court complaint to proceed and district court there aren't any further questions i'll save my time for about oh well what about the time discrimination claim and takes her case to the federal circuit there's a sixty day statute of limitations so what is very clear is that that that's what she was trying to do and she's acted in line with a tent throughout the district court proceedings she attempted to waive her discrimination claims and file in the federal circuit subject to that longer statute of limitations but there is a shorter statute of limitations that applies a thirty day statute of limitations when you take both of your civil service  tagalong discrimination claim to district court so the district court here thought because her claims belong in district court they're subject to the shorter stunted limitations and they're on time but we believe the claims were long before the federal circuit where they were initially thank you your honor excuse me morning i'm stephanie markus from the department of justice and i represent aptly here both the federal circuit and the district court correctly concluded that the plaintiff's claims rose from the same underlying challenge to her terminations and i wanted to quickly correct the record of what the government told the federal circuit and what the federal circuit actually held what the federal circuit was looking at when plain fs district court complaint and the government did inform the court about played us district court complaint and the federal circuit pointed out in its opinion and this is quoted in our brief the underlying nature of this appeal  district court complaint are not as she asserts entirely separate actions far from it in count five of her complaint terminations on the basis of retaliation under title seven mr punch asserts she was removed from her position as retaliation for the filing of her e e o complaints the plaintiff's argument here completely ignores the fact that in the district court complaint not you know at an underlying administrate complaints itself there is a separate count alleging terminations count five and that in all of the previous counts the concluding paragraph references were tallied the determination and these these are all part the other these other claims are all part of the same challenge to determination because the unacceptable performance rating which she is now saying is the central part of the ia sixty two complaint is that that was the reason that she was terminated and she asserted that that the performance rating the denial of the transfer the not getting enough resources to perform the time for performance improvement plan these were all because of discrimination or tally ation and the agency from the beginning when they formed when the agency issued the terminations letter t ms punch it informed her of the requirement that to a left proceeding through the e o process or the amas p p here she made the election to challenge her termination of the record on appeal we have the m s p decisions we have her petitions for review in the m s p and she has acknowledged that before the m s p she did assert title seven retaliation claim and these are all part of the same underlying personnel action which is the terminations are you aware of any cases from our quarter otherwise where we've said that it's not the same matter if the thing you're trying to bring to the m s p eleventh circuit chip versus chalo where there was actually the plaintiff was put on a performance improvement plan and the court said and also references a previous case from the a circuit as in mcadam's which we also cite shit various administrative filings raise related issues and arose out of overlapping facts and that she with all of these complaints related to the same underlying action and the district court also  did its own independent review here and i'm sorry your honor and in answer to your question i don't have a case that goes the other way you could hypothetically think of such a case if a plaintiff had completely different supervisors and five years you know before some ultimate was there could theoretically be of course discrimination claims that are not tied and are related to the same underlying what let me let me try to get at a slightly different way because what i'm trying  that's what i take your friend on the other side to be arguing but your honor if they are all part of the same underlying matter then the emmis peavy does have jurisdiction and the federal circuit itself in the williams case made that clear it explained why these cases can't be bifurcated because if you're if a court is reviewing the m s p undoubtably even in a non next case has jurisdiction to review a removal as a personnel action and if where as here you have a case where the only other actions challenge are in between the notice of well first of all that notice of proposed removal is the same day as the unacceptable performance rating those are basically a challenge to the same thing and then the only other thing she challenges are between that time and the ultimate final term a nation the m s p b would have of let me give you one where i know they wouldn't so what if in the context of the removal there's a they sit down and there's a conversation between a supervisor and an employee to communicate we are we are terminating your employment at a federal agency with nasa in that conversation so you have a removal right that's obviously part and parcel of the same stuff that's in this case but then there's an independent claim for damages that comes because somebody with the supervisor says something racially discriminatory or there's a tor committed in you know someone punches somebody you can imagine a set of circumstances where just would not be in m s n p m s p b proceeding it would be drastically barred would have to go some other place maybe district court maybe the court of federal claims and so my question is how do you think about a claim the comes out of indisputable it comes out of the same matter that is the term a nation discussion with the employee where part of it cannot go to the m s p i would argue your honor that in your think we are relying here and circuit and the district court also relied on the procedural history of this individual case we're looking at a complaint where the actors are all the same people she's challenging she's challenging their motivation and saying they had a discriminatory motive and had a retaliatory motive and she also has a separate civil servants claim but they're all interrelated and i think if you truly had in other words you have to have an adverse action versus employment action so i mean can you get damages against the federal employee or the government or has it waived sovereign immunity for you know emotional damages or whatever what your honor that's a very good point we did have a motion for summary judgment those points pending that became moot and we're not arguing this and i was just thinking about the hypothetical what you can do for under title seven  that's actually a very good point and as we did make those arguments below but the court reached the election of remedies and he did the timeliness issues and correctly decided both of them what do you say a sixty day and not a thirty day yes it is a sixty day if you're applying to the federal circuit and you truly do waive your discrimination claims here before the federal circuit she claimed that she was doing that but when presented with the fact that she had a district court complaint challenging her terminations she didn't volunteer to she didn't voluntarily dismiss the district court complaint she didn't dismiss even that one count of the she didn't reinstatement which could only relate to a relief or terminations so here there is she acknowledged there is a separate statute of limitations that's thirty days and the m s p be here made very all right thank you very much suspect couple of quick points on rebuttal first i'd like to just reiterate that the court the federal circuit thought two things in order to reach its conclusion first it thought that she had appraised a claim that her removal was discriminatory o sixty two complaint incorrectly based on the representations that nasa made before that court and then it looked at her complaint and said well because the complaint mentions terminations she must be continuing to pursue those claims that she raised in her administrative complaint district court and we have explained that the first premise is incorrect because of nasa's letter at page seven sixty five of the record and the second premise is also incorrect if you look at the complaint what each cou does is it identifies discrimination that took place at time one and then it says but for that discrimination nothing that have a good time to have happened and she's entitled to make that kind of claim under the relevant regulations so th regulations are at twenty nine c f r one zero seven five zero one one and those if you look at the relief sought in the complaint it basically parrot's those regulations so she seeks same kind of injunctive relief mentioned in those regulations and then those regulations say the employee can ask to be put back in the position that she would have been but for the discrimination and so that's why she may mentions reinstatement because of her theory that if she hadn't been discriminated against at time one nothing else would have happened but she does not in her complaint seek relief on the basis of a claim that her removal was discriminatory and you know that because not only whatever you know to the extent that the complaint could have been drafted better her actions in district court are perfectly consistent with her waiver of any kind of complaint and if you look at what the government cites to say otherwise i think this is that page twenty seven of their brief they cite to a legal statutory interpretation argument that ms punch made to say that the phone circuit has exclusive jurisdiction over these kinds of retaliation claims essentially to say these claims never belonged in the district court in the first place they don't cite anything and the merits free on summary judgment and they don't cite anything to say that she actually did seek relief on the basis that this kind of claim the next point is just to address one point the judge told and made which is the reference to the same matter and i think the way to think of the same matter language which is in the relevant regulations it's the same employment action so not think of same matter as a set of facts but the underlying employment action that's an easy to administer rule that was administered correctly here and finally i'd like to say in reference to the cases from the other circuits that there is a second circuit case economy no cited in the briefs that is sort of helpfully parallel to the case here where the employee had a set of pre approval claims and then a underlying statute five u s c four three zero three require a separate decision makers both for the proposed removal of the alter ultimate removal and so often there will be an allegation of discrimination a time one that doesn't translate over to discrimination a time to because the decision maker changes and he was asked the first the district i mean the final question i have is to miss marcus pointed out that the federal circuit cites the district court complaint terminations count five terminations on the basis of retaliation under title seven we agreed that the federal circuit what to the complaint and what we think the federal circuit did wrong was elevate form over substance there are no allegations in the paxil section of the complaint that would support a claim that the removal itself was or tell a tory retaliatory removal as mentioned in only one paragraph of the complaint and paragraph eighty seven and the complaint itself goes to an extensive discussion of exhaustion to prove that she properly exhausted her claims and discusses that you know twenty five and sixty two complaints and as we've already discussed there is no claim that her removal itself was based on discrimination in those complaints so you would have to believe that she raised  support it there but it is it is in count five in the federal circuit did rely on the question the federal circuit was asking is is she raising this claim not does her complaint use the word retaliation and it thought she was raising the claim because of the combination of these two factors it's misperception of the sixty two complaint put together with this reading of the complaint and you don't think you can get that whole conclusion without thinking both of those things are true because the first one isn't you should take the plaintiff at her word but she is not raising