workplace harassment based on their military service and then they experienced the confusion that's associated with board appeal process is the board process in general you see eric cases in general and then at least a couple of incorrect statements that were provided by the initial objection based on all of that below what the appellant's trying to do is try to follow section seventy five we all know that there is no section seventy five is clearly referring to park seventy five and that was one confusing point but i think the more important confusing point is that even if he had the citation correct that advice was wrong because at that time such a in such a case under title seventy five or part seventy five it was time bart so and this is the important point this is at least one important point about this case the objective was to try to get these the constructor removal kit claims heard by the time or at the time the judge white's provided that advice  though there are no time limits on the sarah same section subsection b and on top of that confusion this case is clear that the board clearly  law with respect to collateral estoppel and this goes to my earlier point about the confusion and i and standing here today i do think that the board's current  in terms of denying a hearing on the merits if it's clear that the issue is collaterally stop is probably correct but with respect to my clients the issue was at the time they filed their second you sarah case it wasn't time marred they were following the suggestion of judge weiss and their worst case law board case law that supported this procedure and in particular opinion the board opinion says we're not going to do that anymore that that is and that had something to do with you can't get rid of or perhaps comparable whistleblower claim you have to go to the next stage if the board in that context indicate that when you got to the next stage there would be no collateral estoppel but rather all of the factual issue even if they had been litigated in the earlier proceeding would be litigated again afresh is that the hearing that the board sought was required to judge for on to i could answer that question two parts one there's no border rule that directly addresses that issue so my colleagues to the left to be there and even the board itself and the decision that were directly appealing today said well you could have offered additional evidence my first response to that is there's no border rule that says you couldn't second response is that it is somewhat inconsistent with you sara in general which doesn't have any statute of limitations or deadline to file a claim but more importantly i think it brings as a third point it brings me back to the pre case because when you go and look at that case at this page seven or eight of the slip opinion in that case procedurally it is very is almost identical to this case with the exception that it was a whistleblower claim individual right of action cause the board had initially held that the purpose of the party and that was the board said there was an error here because of the collateral stopping rule and you have to provide that hearing and in the very last paragraph of that opinion the board says that mr pre is or must have a hearing on the merits and so i would interpret that and say that you have to actually take evidence and you have to make a decision on the  and that's why i said earlier i think the board now has it correct but at the time that this decision was made in our client's made that decision it wasn't correct and then if you when you add in the incorrect information from judge white's i think that's where you get to the point of understanding why this isn't correct about that information from judge weiss right i mean even you take it as advice from the water that's counseling our cli proceed in the space it just seems to me the good wife just saying that he did not advance a claim of involuntary discharge we had the opportunity to do that and there's various opportunities in this proceeding which you could could have done that you didn't do it and now everyone has resigned and to the extent that you're going to seek any if you ever decide to see construct a removals well you can do that by under under this it would stop us and that's what stop the so far because when you read the statute and when you read the board rules you know that even at the time that judge weiss provided that advice it was wrong because it is time for that he doesn't but when obligation to provide advice is not his me i completely agree with that but if the judge does provide a suggestion in terms of how to proceed with the case and on top of that there is also as as my colleague so well what he does not say is that in so doing you should  on the current case and not file a petition for review in this case correct and say that that's what happened correct you on it and then i think it happened again in the context of the sarah claim there is no time bar and that's part of the purpose your honor i i generally agree with that and i think that's correct again that's why the courts correct now but it goes back to the confusing aspect of we're procedure and i would submit your honor that in ninety nine or greater percent of cases no one would do this because if the point is simply to relive litigate the same evidence or to get the same evidence at an evidence or hearing and to get the same decision on the merits and no one would do that we would appeal and that's essentially at the end of the day that's all we're asking for is a right to appeal our claims to the full board as a petition for review and so i think the concern about construing things usera and the other board procedures the second usera but also to directly that i have abandoned in your claims at that point they were rendered final if only if you agree with the government's position about collateral stuff happen right i mean  procedure under five c f r twelve zero one point one one eight the board has the authority to reopen any decision at any time so there is so in terms of the final decision it is final but it's not in the context of jurisdictional final they don't do subject matter over the case and to underscore this this point really really underscores confuse but then i mean the general notion to find out what the that's relevant here is it i lacks without edition i think if you're on it it does if you basically put aside everything that we're arguing in terms of the misinformation from the board the the context of no time limit or userra claims now the misinformation from the from the board itself and then the board procedures in terms of the board prior process and really if we want to do it and we try to do that in our briefs in terms of a strict lateral analysis this change in law basically the way we look at it is that prior to the change of law according to board procedure to speak three cases and to preach ace there was a viable avenue to go forward it was not often used but it was viable was it ever used i guess at that's the question the question is there a situation where it whether you sero a whistleblower  where all the facts were dry adverse decision no review is taken and you go back and do it do it again and you get to the hearing or a hearing and it is and it happened that there was a retrial of what had already been tried and you then get or you didn't retry it but you now say you know the final shoe is dropped and i actually got actually left the job but on the second opportunity for appeal this one taken the board says yes well that is now right for our review and we can review it you're on it with all of those then follow the notice provided at the end of a j rice its decision about how to file a petition for review board they found the second you syrup you know in which the attack the decision in the first case so it's this is a quintessential case of  something that sounded awfully lot and awful lot like you've got this other route to complete the process now that for two of you the last show has dropped mr howell i guess it already resigned and then the other thing that he will say is the stink is that there was something very confusing background law growing out of this court's kirk and out decision about having to have a hearing even if you  don't have anything new to say about the facts and taken together that was kind of a good enough reason to think let's bring a new proceeding relying on the old stuff but then do the appeal after that so council describes this footnote which is i think it's on page six of the pentagon as misinformation but in fact it's correct the footnote is correct the there is a possible further avenue of appeal and the administrative judge weiss simply identified it and he may have felt obligated to do so you sara says in the opening provisions that nothing in you sarah is intended to in any way limit other rights that employees who also have military service are entitle to just saying you have a possible further avenue of appeal and you know if i say second the second thing is there's this argument about detrimental reliance on the foot no what's hard to make if the and they didn't follow the foot so it's hard to see the rewrite on the footnote and there's just there's no right to bring it's true that there's no time bar under the m s b regulation the new serapis you can keep  about what was supposed to happen so in that case the issue preclusion would occur at the hearing stage so are there cases that said that i could not find any that got to got that far two of these three cases in fact were the petition for review was denied by the board on different grounds so there was no remain and brief meaningless hearing and the third one didn't go to hear so i didn't find one and actually went to a meaningless hearing but in these other cases it's possible that there that there may be an overlap of evidence but not what we have here which is a complete overlap of evidence so i think what this case did was bring to light to the board the hearing it was considered not frivolous and they got to a hearing and then at the hearing they couldn't prove the allegation and so what the board said and both were which set up this problem was for the issues different when you're looking allegations and there broadly construed under userra as a liberal standard so in most cases it would go to a hearing if there's if it's if it's close enough if there are some some not frivolous allegation so these cases set up the problems as a let me just ask i thought what i just heard was something that sounded actually perfectly ordinary which is that it proceeding number one you fail to prove a fact by preponderous of evidence that doesn't fact that they the board did not could not disregard the fact that the were named and were unable to provide evidence to support that allegation she or we have again in the first proceeding there was a full hearing and they were unable to prove their allegations so that it's in similar situations when they come back with the same evidence the board can't ignore that would happen in the first proceeding for here they would prevail so what you would have is a second administrative judge looking at the same exact evidence coming up with a different findings and a different conclusion and that's exactly what issue preclusion is supposed to prevent which in this court so that's why we didn't mention it in our response risa came after our response briefs that's currently pending before the board and it's an opportunity there they're trying to reopen the fs the decision by judge weiss in the first and most of the appeal more minor point but mostly because of the you know the line of cases that the board overruled here that they kind of thought that they could take this extra step and get review in the second proceeding of the initial a j findings in the first issue to address the chief the change of law the change of position try to rely on the change of law exception as articulated in and if the dow chemical decide collateral stoppel acted jurisdiction states you it doesn't have to have an empty hearing and i think about i think it's helpful to think about it in a normal this record setting if there was a trial that went to verdict before a jury because the issue of collateral stop will does not it does not matter what the burden what the burden is at that particular pleading stage of all the other elements of collateral stoppel are not so before this decision was the those are all whistleblower cases that's met by simply alleging a protected disclosure but there was and this p p p precedent for deciding the issue collateral stoppel at the jurisdiction offstage and the noble decision actually did conflicting president out there that and in the non whistleblower context they did decided at the jurisdiction stage but i want to real quick and i know my time is running out i want to talk about the appeal or excuse me the reopening of the appeal and my colleague alluded to it petitioner state in their motion to reopen that they filed in may of two thousand and seventeen that should the board reopen this appeal the appeal to the federal circuit would to address a couple points so the district court analogy i think in a way is apt but also underscores the distinction between board practice and support practice i do both if you get past the motion to dismiss case and district court you get to develop additional evidence and in our case we were satisfied with just getting a second review of the evidence presented but if you want to take it analogy from district where and apply it to the board practice if we get past that frivolous at allegations stage we would have had the opportunity to develop additional evidence then what was before a judge white's there's no board rule precluding that again we weren't planning on it but if it's necessary we certainly do that and that would be the normal practice once you get past that you get through discovery you develop evidence and you get a hearing on the merits as the board said in pretty preached and i'm always disinclined alleged protected disclosure in both appeals the issue in the earlier action was whether after a hearing the appellant proved by preponderance of evidence that the disclosure was protected similar to what we've done here the next sentence the issue in this appeal however is whether on the written record the appellant has made a non frivolous allegation that his disclosure was protected same posture that we have here and the board decided and again this is the old board law that once they got past that frivolous allegation stage they and i float we're is entitle to a hearing on the merits and at that point we would have had the opportunity to develop additional evidence if we had wanted to and i think add to one of my colleagues points i mean am i right in remembering that when you came the second time  seventh or something two thousand and four hearing date and the last time and he said we've got nothing else right because it was only this you know there's only a short window between the time that they were still employed in the time they actually resigned so there was no additional e the current court precedent and that goes back to perth now if the court disagrees and we get a chance to we certainly would because the the the mr judge and the second case was asking if there was any additional and relevant evidence to that subsequent time period is about two or three week period he said but we we would like to put on additional evidence as to the earlier time period no your honor and again because we didn't think it was necessary what we were trying essentially to do