these the court drew harris for the petitioner in november two thousand and seventeen the t e a commissioner learned that his recently hired special education director had just been sued because in her last job she allegedly covered up the sexual abuse of a six year old special education student commissioner maura promptly fired the probationary employee from her high profile position as the public face of special education in texas but not before lori cash was able to make a whistleblower report about a minor software contractor who responded here the u s department of education now this case goes beyond whistleblower law this appeal is really about how easy is it to waive state sovereign immunity that is the key issue here and there's clear precedent on it i'm going to let me ask you about you plame oh sovereign immunity are you claiming sovereign immunity are only asked to damages or are also asked to any other sort of relief i don't i don't find anywhere that you specifically go beyond sovereign immunity as to damage well in this case we are argument is that a claim a private claim cannot be adjudicated against estate agency warding damages or other relief there are other ways to get around sovereign immunity such as ex parte young which are not applicable here immunity beyond immunity from for money damages the argument that was made in our briefing before the a l j was that sovereign immunity applies to the  that the n p a a did not waive sovereign immunity and so therefore immunity applies with respect to any determinations regarding the n d a the applicable one here course was damages so i think that the key issue is whether or not there are express words that are unequivocal waiving sovereign immunity here and given that dr cashes whistleblower claim fails for three reasons st is that b a statute itself does not on its face expressly waive state sovereign immunity and if this court agrees this court does not need to go any further but can we can we look to regulations as well as french no your honor congress can create a waiver a state sovereign immunity and agency cannot unilaterally create a waiver states  now assuming number two assuming that immunity was waived there's a procedural problem here this whistleblower dispute should be did have should be decided in district court rather than by agency administrate of action and that's because the agency did not act within its statutory thirty day period and just like the other cases like a top a this deadline had consequences cashed had exhausted her administrative remedies and proceed to district court and the agency lost  goes to the district court now the rd reason is looking at the merits of this case the ael j committed error in evaluating the evidence among other various error the ael j speculated as to privileged attorney communications and then outright side of those speculations as the basis for his decision now i want to start by focusing on the most important supreme court case regarding states are in unity here and that is a tuscan arrow state hospital a tuscan arrow concerning the original rehabilitation act which on its words applied to any recipient of federal assistance now the supreme court wrote in a tuscan aero that given their constitutional role the states are not like any other class of recipients of federal aid and the supreme court held that the statutory language in the original rehabilitation act was not an expressed and unequivocal waiver of states or an immunity no congress knows how to craft statutory language that appropriately waives immunity congress and mended the rehabilitation act after the a tosca darrow decision to include explicit waiver language and in fact it was the same express and unequivocal language that this court held to be a valid waiver in the pace case now much like the tuskegee arrow here the responded argues that congress intended  to apply to all the states because the whistleblower statute simply applies to any grant t a federal money and so under the department of education's interpretation of the statute any state that accepts any money from the federal government has unknown we waived its sovereign immunity to private whistleblower claims but just like a tasca darrow given their constitutional role states are not like any other granted this court sh of sovereign immunity when there's an ambiguity about what constitutes a grand tea a grantee is not defined in the statute and the department of education's with position is to infer that that also included the states but of course there's lots of precedent the says waivers of immunity cannot be inferred they have to be clearly express and the statute does not clearly express that now there were only two federal courts to address the issue of a waiving states over munity and those are slack and the williams case and both of them used a tuskegee air as a starting point and concluded that the n d a did not waive state sovereign immunity no checked both of the status of those cases this morning the slap case was not appeal but the williams case is currently on appeal before the th circuit briefing has been completed but no opinion has been issued in that case so again this question about waiving states are an immunity it's now before two circuit courts and i guess i would urge you that to follow tusker darrow as being the clear answer for that question now i do want to point out that the department of education has already conceded that the ale j s basis for jurisdiction was incorrect the ale j relied upon a waiver of immunity in the i d e a statue and the department of education is now abandon the argument and argues that the n d a a language on its face when it says grantees that that is the risk that creates a waiver of sovereign immunity so turning to my nd argument regarding the procedural issues the agency under the n p a had one hundred and eighty days to act or to investigate which could be extended to three hundred and sixty by agreement which happened here so they had three hundred and sixty days to investigate which i took and then they had thirty days to act were otherwise this matter could go to district court and i want to give a quick timeline here which is on september th two thousand and nineteen the oh i report submitted its report to the secretary of education now in the briefing the department of education suggested this might be like a preliminary report but it was in fact the full report with all the attachments and in fact secretary de vos his letter memo on joint appendix  fifty three dollars explicitly says that on september six she received the former poor and all the all the attachments now that meant that thirty days after september six is when the question other under your argument what protection does a whistleblower under the statute so st of all the texas texas state has its own state whistleblower law and that it clearly and explicitly waived its sovereign immunity to so disk dr cash could have filed a texas whistleblower act claim in this case on the st that one  under the statute weather there so this for anybody to have a remedy against the state under the federal was simple or statute it needed to have clearly waived immunity and congress if they and our position is that you're right the n b a does not apply to the states due to sovereign immunity if congress had intended otherwise they could have used the clear statutory language that they use for the i a or for the rehabilitation act after the a task in their own decision but it's it's an issue of immunity congress if they want to waive it or abrogate immunity they have to do it clearly and explicitly contained specific waivers specific to that statute that that t s a waived their immunity swith respect to the i d e a they did not waive their immunity to a separate statu and so if i can ask that if i can see that question any other way i'd be happy to and against you ok thank you again we think that the immunity question is the key question here i will very briefly cover a n the other two points but i think if the immunity issue is resolved there's no need to address those points with respect to procedural issue there are cases to civically on point the top a and he has so case which bo if there's actually an impact to the deadline then that deadline can become jurisdictional in contrast the bra case dealt with a deadline that had no consequence it would involve a  training grant where if there is no consequence if the agency did not fully complete its investigation within one hundred and twenty days because here there is in fact a consequence which is that it goes to district court then the agency has lost its  act after october th two thousand nine hundred dollars no what i will say is that even the department of education believe that the thirty day applied because secretary de vos is member specifically said that it would issue the decision no later than thirty days and in fact he alle j s notice of hearing on this matter explicitly said a decision this matter must be issued no later then whenever that thirty day deadline so they had knowledge that there was a thirty day  issue time to act but they calculated on when t e a receive the oh i do report if you look at the statute it's very clear the thirty day period begins when the secretary received the report and it's and even if this court determines that sovereign immunity has been waived the sewer mission is to then re man this case and let the claimant file a class action in district court she still has her statue limitations to be able to do so that continues i believe until october two thousand and twenty one finally with respect to the merits while acknowledging the high burden in terms of showing that there was substantial that it was not supported a substantial evidence we believe that there are several examples of arbitrary and capricious decision making such as basing the decision on speculation about an attorney client meeting such as turning basing a decision about whether or not the commissioner found the allegations credible by him and out of context use of the word unbelievable so these are examples of arbitrary capricious decision making but i will conclude by returning to the sovereign immunity your honors were here because the texas education agency received a one billion dollars from the federal government in exchange for its compliance with the whistleblower provisions here as judge questions highlight texas  before the ail j in its briefing this court appears to object only to the imposition of a damages award but as of no moment because there is simply no dispute that texas was a federal grantee to the tune of a one billion dollars from the federal government that excepted those funds and that it participated in the administrative proceeding and was bound by the substantive with lower protections the only question here is not to whom the whistleblower provision applied it's because it clearly applies to texas rather were the words in the n d a specifically providing for a damages remedy sufficient to put texas on notice that when excepted the federal money it was subject to the possibility that it would have to pay damages if it were found to my late sucked into provisions your honor texas is contention that  the some specific language using condition or waiver or th the minute amendment immunity is required in the n d a is simply contradicts this court's  contrary conclusion in pace under this court's case law there is simply no magic words required to condition federal funds on a waiver of sovereign immunity and if the court has no questions on that point i would like to respond to texas procedural  concerns your honor at texas has pointed to what it contends were procedural irregularities specifically with the compliance with a statutory timeline for the agency's decision making and as we pointed out in our priests the position that texas has has staked out makes little sense for the statutory time line to begin to run when when texas itself didn't have the final report to the secretary and to the parties and that's adequately documented in the record in any event even if the court were to conclude that the agency didn't comply with the statutory deadline that deadline is not jurisdictional the d as the supreme court has recognized questions of statutory deadlines and whether they would deprive an agency of jurisdiction in proceedings like this one  are question of congressional intent and congress intent was clear that if the agency couldn't or didn't comply with the statutory deadline the remedy was then for a whistleblower to proceed in district court that didn't happen here and the agency was well within its rights to continue to decide the dispute again assuming that the agency's decision making was untimely and finally the texas complaint that the agency's decision making was was flawed on either of the two prongs of the whistleblower analysis is incorrect the agency fully considered the evidentiary record conducted a full investigation a live hearing in which the a l j heard from live witnesses and made credibility assessments and and properly determined that the whistleblower had shown that her whistle blowing activity was a contributing factor within the meaning of the statute and similarly had appropriately concluded that the state agency had not met its burden of showing by clear and convincing evidence that it would have terminated her without whistle blowing activity the primary purpose of the idea is to prohibit it was reprisals against whistleblowers and that indeed is section forty seven twelves title prohibition of her prizes the n b a has interests are predominantly federal no contractor it is only when the federal agency is vindicated all federal interests the whistleblower has any right to bring what the statute specifically notes is a dyno go action industry core and that's the posture of this integrity of the federal government's grants to state agencies are vital to them is vital to the mission of those programs and that in turn depends on employees knowing that they can speak the truth about waste fraud and abuse as happened here and not suffer reprisal i'd like to turn to briefly to the merits of j laden's decision but before i do that i do want to address one briefly one issue on the mr harris raise and that is the issue of a deadline and i would again refer your honour's to the statute as a whole it is clear from the statute that the the deadline is the primary beneficiary of the deadline is the rule is the  contractor whether the deadline is matter not it is a timing mechanism to ensure that the whistleblower does not basically have to have to wait forever for the agency to make a decision  means decision it's clear that he reasonably found through prior knowledge of dr cash is protected activity and temporal proximity of her terminations that are whistleblower and was a contributing factor to her terminations and that and in fact terminated mere weeks after terminating dr cash t a simply disagrees with the conclusion the judge laden reached as the fact finder congress enacted the n d a to prevent frontal grantees and contractors retaliation against whistleblowers because congress is harder to experience with what happens a vital federal programs when when this is such a source of her retaliation thank you very much  yes thank you mr earlier mr horace you say tom for a bow thank you your honor i'm of course open to any questions that your authors might have but otherwise i use my rebuttal time to focus on two cases that are citing a brief circuits hearst case which apply to a similar argument that was being made as the department of education is making here with regard to the vocational rehabilitation program and in that case which again it applied to recipients of federal assistance the this court held that that argument that was being made by the plaintiffs was indistinguishable from the argument rejected in a tuscan arrow who would say the same thing applies here just like in her the argument that's being made by the respondent is this indistinguishable from the argument that was rejected in the tosca the other case i'd like to point to is the mccain case versus school this but versus school district it's a case that williams approvingly williams being one of the cases where depending on were citing the mccain case held yes williams was correct in holding that the n d a did not weigh state's auburn immunity and by the way it also did not waive sovereign immunity against the united states now because there are federal agencies can contract or be grantees with each other under the department of education's interpretation that grant he applies to literally every possible grantee that argument would in theory also waive federal sovereign immunity to be a whistleblower claims which again that case and mccain held it did not and i will finally conclude by just noting one weird quirk going the thirty day deadline argument is that after the thirty day deadline expires the district court has jurisdiction but the position of the department education wise which is that thirty day doesn't necessarily mean anything it would result in a bizarre situation where there'd be concurrent jurisdiction where the agency could be determining the whistleblower dispute but it just a court could also be determining what was will or spirit the statute actually doesn't allow for that it says that the agency