pleas for we appreciate the court's order with respect to the arbuckle case because we believe it's directly on point regarding the preclusion analysis in this case because the district court's reasoning would produce we think consequences that the california legislature could not have intended with respect to the california whistleblower protection act to the extent that the district court's reasoning would deny the appellant the procedural guarantees an independent fact finding hearing and the opportunity to obtain an independent remedy of damages under that statute although we believe the s p b s findings were favorable with respect to my client arbuckle stands for the proposition that even if the findings were under favorable to the appellant he would still have standing to bring his claim in civil court arbuckle makes this point clear by pointing out the statutory intent of the california whistleblower protection act and specifically sec government code section eighty five forty s forty seven point eight subsection see that parties like appellant should not be denied the procedural guarantees an independent fact finding the statu e provides nor should they be denied the opportunity to bring an independent remedy in an action for damages that are contemplated by the statute since that would not serve the statutes purpose of reporting wrongdoing without the fear of retribution and the like are we love our buckle the reason that we issued the order was it looked to us like it was a pretty significant controlling authority and i don't know that you need to spend a lot of time on it i'd like to hear what the the state's response is but it seemed to me also in support of your argument that the administrative law judge never really addressed the retaliation aspects in the decision and since the does is you point out the decision was basically generally favorable to mr walk and sort of double barrels the cases are absolutely your honor and that's underscored by the forty nine page opinion the administrative law judge issued it was extremely thorough there were i believe sixty seven findings of fact there were eight separate issues determined and at the end of the day retaliation is not discussed once in that forty nine page opinion or those sixty seven findings of fact or those eight issues and in fact the end result of the hearing before the s p b was that the administrative law judge threw out all of the charges that were disputed by the by the appellant including charges that he was a racist that he was dishonest that he had retaliated against fellow correctional officers that he engaged in sex play with and mates all of those things were thrown out at the end of the day the only charges that were sustained in fact were charges that he did not dispute minor charges involving taking a silly picture using a state vehicle to take a picture of a home he considered buying taking a colleague to look at a trailer and bringing a movie into his prison camp that he actually intended to use for training purposes and the fact that those were the only charges sustained and that he did not dispute them clearly shows that the judge was not taking an approach against his retaliation claim but instead actually supported it by the by the ruling that he ultimately issued is his status now h been restored to his position as a correctional lieutenant he's had to suffer five percent reductions our every year with the only that was the ultimate penalty that was levied he has been restored he's now retired on an industrial disability and he's no longer working for the department of corrections but he did retire in good standing as a peace officer and and that's where he's at today now leading to further underscoring our position leading up to the actual administrative hearing the executive officer of the s p v dismissed the whistleblower retaliation complaint that was brought to her attention and what's further significant about that is not only did she dismiss it but at the time that complaint was submitted i have been his counsel throughout all of these proceedings i actually requested that the s p v may want to consolidate his whistleblower claims along with the disciplinary hearing and instead of doing that what the executive officer did ishy dismissed the whistleblower claim and denied the opportunity to consolidate those claims and therefore s p v divest itself of jurisdiction and it's an absolute stretch to think that somehow the s t b somehow reacquire jurisdiction simply by my client raising retaliation your position is that that constitutes exhaustion of administrative remedies since no appeal to the superior court was taken by either side of that dismissal that's absolutely correct and then that comports with the statute that says once you've done that you've you've taken care of all of the perec with the filing suit for retaliation absolutely your honor and that's exactly what arbuckle stands for that the only thing contemplated by the statute and again indicated in her letter that your administrative remedy is exhausted you now have standing to bring a claim for damages in superior court now moving forward even as after she did that at the actual at the actual disciplinary hearing if the whistleblower retaliation claim had been it issue the individually named defendants would have also had the right to their own counsel to defend themselves and the fact that they didn't shows that the whistleblower retaliation claims were not at issue and that right is codified in the regulations and that's title to california code of regulation sections sixty seven point one through sixty seven point eight and as i mentioned even if s t b had jurisdiction the record is clear that the ale j was hostile to the defense of retaliation based seems to be aware of even though i've been on the books for our buckle does not apply the instant proceed ings for the reasons stated on page one of appellants opening brief he frames the issue as whether the district court erred when it ruled the collateral estoppel applied to the state personnel board findings from la pickens it peel of the discipline imposed on him but arbuckle says there is no collateral estop el based on administrative proceedings where the claimant has exhausted his remedy and the only thing as i read that case that is required for exhaustion is exactly what happened here that the the state personnel board dismissed the claim and thirty days later when no petition for writ of mandate was filed the decision of the agency became final and that's all that's required before he then can bring a lawsuit and my misunderstanding the law you know you understand the law but what is missing in your analysis is the italicized reference on page one of the what of the arbuckle opinion to what does not have precludes have a fact and what does not have precludes of effect it's actually page nine sixty eight but i'll call it the first page of our bubble and nine sixty eight what does not have precludes of effect is when the board issues or fail to issue and these are the key words findings pursuant to section one thousand six hundred eighty three and that's of the california government merits of the claim of the board never examined and it's not an issue finding hardness and it's not and it was not relied on by the district court the district court took collateral estoppel or issue from for seedings under nineteen five eighty two of the government code but what this case article prot to the district court's attention that the children have an opportunity to analyze the collateral estoppel issue under the rationale of this case no and the reason is that again collateral estoppel didn't come from a proceeding under one thousand nine hundred eighty three which is the only thing to which our bucko applies it came from a disciplinary proceeding three under the whistleblower act and he stopped at that point filed his district court complaint and proceeded to litigate it there would have been no issue preclusion or a few to cut a bar but he didn't do that he pursued an alternative remedy and when he did that he took himself out of arbuckle for collateral estoppel purposes he appealed his discipline under nineteen five seventy five of the government coat and he had a appeal of his disciplinary action under nineteen six eighty two and so when he does our summary judgment before the district court to the education or the finding of the s p b on the whistleblower complaint although there is no you  bucko that's a wonderful marble you know that name well i remember fatty arbuckle here in california yeah just wondering what he would think of case to the court in opinion this not relevant to the issue before it the issue before the district court was can we take collateral estoppel from disciplinary proceedings under a separate code section of the california government code and there's no question that the district court could do that in fact arbuckle is discussed in a case that was decided just two weeks after we filed our brief in this matter it was discussed in fallon says sutter central valley hospitals and have to leave the site i hope but what's interesting in that discussion is the california supreme court goes back to a decision before our buckle that interprets this or really interpret this cardiod that the only proceeding that doesn't have collateral estoppel effect is a whistleblower proceeding under government code section one thousand nine hundred eighty three it discusses the california supreme court goes back historically to talk about these copy outs and it discusses maclow c versus regents the university of california two thousand and eight it's also under the whistleblower statute eighty five forty seven it's under the point ten instead of the point eight it has a subdivision  as do all of the california whistleblower statutes and back in two thousand and eight a year before our buckle the court concluded that because the ca be ott wasn't there and that carve out eighty five zero and by the way two years later the california legislature added to carve out similar to what we have in our buckle they added that there was no collateral estoppel effect if the findings were satisfactory to the employee again that's similar to the carve out no collateral estoppel effect of findings pursuant to section nineteen five eighty three the common in california the legislature makes exceptions to the common law the judiciary does not and and again in this later case in the salang case the california supreme court reaffirmed that principle that principle remains that if you're going to carve out collateral estoppel you're going to do it with the express verbiage by the legislature the court is not going to do that that's why i asked them a classically eighty five forty seven point ten subsection c had to be amended to put a carve out in so hearing was a can again wobble can didn't quit when he got his findings that have no precludes of effect he went forward with a disciplinary proceeding and he made another strategic decision when he did that and what he did was he raised an affirmative defense of whistleblower retaliation but it wasn't recognize it wouldn't hear any evidence of it that's untrue the a d l how do you explain sustaining the objection well this or anderson tried to introduce evidence no he tried to introduce a specific piece of evidence he was asked when you read the record for an offer proof he made an offer a proof of its relevance to the affirmative defense and the a l j said you know that's not relevant to your affirmative defense that's different if you ask the wrong question and he get a relevance objection you need to re ask the question or try to introduce a different piece of evidence so waba can makes this decision how do you explain the fact that there is no discussion whatsoever in the forty nine p findings and conclusions two to two ways one we cited the johnson case from the u s supreme court that came down again later it came down just as we were orally arguing matter and then schreiber that it was necessarily implicit in the ruling of the tribunals that the claim was considered and rejected i can't make that conclusion based on the forty nine page decision i read oh but you can in the region you can is that the opinion applied to propose endurance of the evidence standard and where the affirmative defense is raised and where there is a nothe evidence on it to show that there was whistleblower retaliation the standard of proof that must be employed on the hiring authority and c c r is clear and convincing evidence given where do i find in that decision any statement to that effect by the hearing officer that in essence the claimant didn't make out a crime aphasia case he doesn't meet the burden of proof by provider and therefore i'm ruling against him on that claim it's not there it's not there in that manner but it's there in the evidence standard that was applied if he had found in favor you are asking us to do is to simply assume without any reference to the affirmative defense that it was necessarily rejected when the thrust of the decision is favorable to the employee why should i assume just the opposite that in instead he found there was retaliation and therefore the only discipline to impose was a five percent reduction in pay that he'd already served because the statute says under the subsection e of eighty five forty seven point eight that if retaliate if your assumption is correct that retaliation was sh own then it's a complete affirmative defense to all discipline well the only the only charges that he sustained were the ones that the loo ten acknowledged and apologized for and for which the discipline was i but that's inconsistent with a complete affirmative defense think of the affirmative defense is what should have limitations was worries with regard to far more serious charges that would have resulted in sustaining as terminations of the ails a had been persuaded but obviously the a l j didn't believe in the strength of the state's case of clearly it didn't did all factors there's no question that but in affirmative only the only charges that sustained were the ones he admitted but he didn't and affirmative defense says so what it's house you have a case where there is part retaliation and part misconduct that let looks to me like what we have here and if you have that then two things you have a clear and convincing standard in your opinion which is not present here and you have a complete affirmative defense to all of the discipline admittedly or not think that i'm i guess i don't buy that last conclusion i can ike well i don't see why it's inconsistent for the decision maker to say i agree there was retaliation here with regard to ninety percent of the charges that were filed but for these ten percent that the employee admits i'm going to sustain the discipline that doesn't seem inconsistent to me at all i mean juries do it all the time when they dismiss counts or claims in civil cases or criminal and they do but here you have to i would ask the court to look at the wording of the statutes we have to back the statutory construction and the and it is a complete affirmative defense complete means just that no discipline no finding in favor of the hiring authority and so when we look at that language the employee shall have a complete affirmative defense in the adverse action when we interpret that we know that there was no finding of retaliation but there doesn't have to be i'm going back to our book and i'm looking at justice can ds opening paragraph where she quotes the statute and then says that the requirement is that the board must either issue or fail to issue findings and here it seems that we have a failure to issue thinking about by the words that they use you know you really don't you really don't there's no such thing as legislative and there's a fix you know so look really ask you to look at the wording in the statute of the c of the car about note that we didn't take collateral estoppel from the carve out we took it from a separate proceeding i'd look at my class see one more time and i would look at the the plain language of that it applies and it says we only apply the carve out as written by the legislature if it's not there we're not going to imply if you do that i hope you'll change your views discussed names our buckle might be up there from my standpoint but anyway i know it's mother's day weekend it is but it's not on the list and i get in big trouble my wife is latina and so we have picked out