and we are here because we believe the district court made a mistake when it granted the defendant's motion to dismiss this case based on the exclusivity provision of the federal employees compensation act  the government has put all of their eggs into that basket i'm sorry i did want to reserve five minutes for rebuttal and so i would like to first address the due process  claim the due process arguments the claims presented by mr camber those types of due process claim were addressed by this court in one thousand nine hundred five in the case of rodrigues versus donovan the court in that case and that is cited in both parties briefs the court in that case looked at a claim by rodriguez against the department of labor and allow due process claims to go forward on these facts rodriguez alleged that when he when he entered into a criminal settlement with the government a period of suspension of his benefits compensation benefits should have ended they should have been reinstated he asked for a hearing he wasn't given to hearing what was what was the nature of the re sought by mr camber was a order that the department of navy comply with the regulations directed at the department of navy which we have attached to our complaint your honor it's that missing i think at the time he also requested reinstatement there was a lot lot going on for mr kember at that time and then he requested he requested to be made whole he requested attorneys fees he requested misunderstood your question i'm so sorry you know the department of labor does not have any power to give relief the ond standard worker's compensation you know remedies  replace your lost wages provide you medical care so no and actually that's what the ninth circuit said about this case this is why they let rodriguez go forward one reason why they let rodriguez go forward these are constitutional claims they don't require the court said they don't require that the appeals court of the district court look at any decision made by department of labor kember's the case is not dependent on the court looking at any decision made by department of labor this case is all about what the navy should have done under these specific regulations passed to an act two to implement the federal employees compensation act yes but these regulations are directed only to the employer the department of labor has no authority over the so i'm asking the question because it seemed to me that i think one of the claims was that a baby monitor was being used to mr kimber coworker with the consent of his supervisor placed a baby monitor near his sleeping quarters with their receiver transmitter when it was called in the captain's quarters to monitor without mr kember's knowledge what happened between those two employees if anything now nothing happened nothing happened on that particular your claim that this is somehow a a no on department of labor height violation upon which some claim for relief is predicated i want the department of the workers compensation powers of the department of labor no your honor actually the microphone and still such a claim is not being made no no it's not the claim that's being made is that the department of navy either failed to comply with these specific regulations or ignored them completely and did whatever they wanted to do these regulations tell the navy how they can participate in this administrative cooperate in the b l l proceedings would tend result in the denial of a span of its bite below there's a couple of things to address where your honor i want to make it very clear that whether or not the navy's actions resulted in the dial of workers comp benefits is immaterial to our case what the department of labor does in any instance is immaterial to our case it is not about them the crux of this case is also a little bit broader than the navy not complying with these regulations the crux of this case is the navy doing whatever they want in the context of a non adversarial remedial administrative system when they have been given specific instructions about how to participate in that system they instead instead of following those specific instructions in the regulations attached to our compliance which  say i think it's ten dot one eighteen c tells the agency the question asked is can they participate in the claims process in any other way besides the ways set out here and the answer in part c of dot one one eight is no no they cannot participate in any other way therefore if an a b participates in this administrative process in an adversarial way or in any other way then they are running afoul of these regulations and as far as mr kimber is concerned they are interfering with his due process rights i mean the simple fact is on the record reflects that the ca to claim form was not signed by the navy for five years took five years to get a signature on that claim form now you know something that sounds so simple it's never simple there's a lot behind that story i get that but the fact still remains that from two thousand and five to two thousand and ten far kember ran around to try to chase down this form and move his claim forward he even engaged the agency legal office he wrote some letters in two thousand a help me where is because the the navy's failure to act in accordance with these regulations number one and the navy's failure to act totally contrary to these regulations those two things operated over a period of literally years eight years is what i say in the complaint to deprive mr camber due process and in rodrigues that's exactly what the ninth circuit pointed to they pointed to the delay and the failure to hold a hearing and said that rodriguez is a claim against the department of labor in that case not even his employer actually gets the department lay with the people who administer this compensation act the ninth circuit let that case go forward on due process and let's say this case goes forward and he prevails what relief are you hoping that he will get separate and apart from the claims that and that was denied so he will be looking to get any kind of a wage loss that the department of labor has said we're not going to give you he's also going to look for pain and suffering mental anguish you know the interference with the joy of his life i mean this is a man is like truman day for me because i thought the first question i said is what relief are you seeking and now you're giving an answer that's entirely different than the answer you gave to my question your honor i think i think when i asked the question damages allegations it wasn't clear that he's really seeking anything other than the wrongful the nihil benefits by the deal well so let let's get back to the question of injunctive relief  what deal well does or doesn't do at any point in the car knowledge of events is now immaterial to whether or not this court is going to send the case back to the district court  the returning to the monitoring incident which takes front row seat here the monitoring incident was recently found by the department of labor to be a non comp when it's time to process and injury compensation claim in mr kember's case the process fell apart it fell apart the navy did not leave live up to any obligation in the regulations they didn't provide him a receipt for the ca two that he filed in two thousand and five had they done that there might not have been a five year delay until he finally got a signature on the form in which to me that first of all you're three minutes overtime but secondly that you're just throwing up a lot of facts in the air kind of like the leisure to main routine and then expecting that somehow when they all follow th to shine some light on how the agency conducted itself in this case with respect to a worker's comp claim that is we how else do we get to shine a light on what happens in the injury compensation a quick thank you so much and then the court said this court said in one hundred eighty five we simply conclude that on the basis of the record before us rodriguez is due process contentions appear to be more than mere allegations included in the complaint the court said we hold today that chico was not intended to preclude jurisdiction over a due process challenge such as the one rodriguez raises here that they have a complaint for due process violation against maybe four times depriving him of his right to a fair hearing for the department of labor not book is very clear that the rule is that seek is exclusive with two narrow exceptions i'm quoting almost directly from markham i emphasize the narrow one a constitutional claim there's no doubt the constitutional claims are part of the narrow exception another is if there's a clear violation of the underlying seek a statute that's the fetus that you have to be absent as be crystal clear now what i would s suggestion that the questions from the bench from does a certain particular is neither of those conditions is met here what we have are a lot of handwaving is looking for and perhaps you might enlighten me  seemed to me that if a constitutional lawyer were looking at this case and saying i'm going to bring in a cause of action for a constitutional violations that they might say well eavesdropping of employees is a non  injury which doesn't even come within the department of labor or nature type of claims but it's a set of separate constitutional violation that that really fire certain types of relief and that are prayed for and that's kind of what i was looking for my questions i couldn't get a single answer to those till we got to the flashlight and i mean i don't know if you are i'd suggest this if you look at the complaint what it says is it says th but that's not it i would suggest your honor that does not rise to the level of a constitutional claim i heard a lot of regulations regulation regulations but not a lot of there was a right to a hearing that was completely denied in  had its constitutional right but but in the koran there's a lot of regulation regulation regulation not a lot of constitutional right and remark is a case in which the court said claim like a title seven claim for instance that's why i was asking counsel about the damage allegations and the only if because like the nichols case and the compare a case out the out of the eleventh circuit there was no jurisdictional bar there of type of allegations because there are all kinds of types of allegations and here are going to judge a certain point i mean it's it's throwing everything up against the wall what i'm saying is that the granite of the thing is you didn't process this form which turns out actually since the court court made its decision it has a process before and the part of labor has made decisions so that is moving in that respect the second thing is it's also the case i disagree emphatically with counsel that it's immaterial their  position is it's immaterial what the part of the waiver does ultimately at the end of the day they're trying to on do that decision they want the benefits that the workers compensation board would be otherwise able to provide them fact as i understand it the state of play in the worker's compensation arena as it was sent back down it was denied and now there is a right of appeal from that you know what was the allegation in a sort of or was it mandamus plus in other words they weren't just complaining that hasn't been processed they were seem to be they're complaining about a great deal more well that they're complaining it hasn't been processed as a result we haven't gotten our benefits that they seem to think they're entitled to dismissing the complaint the answer that question is yes at that time the complaint had been denied by the department of labor and the only thing that the only way the court could have looked into that the allegations was on do that to what happened later on i'm just saying that it is that as far as the claim is oh you didn't process this form subsequent events have moved in that claim well that wait a minute subsequent events are something you don't want  consider you want to consider only what was before the district court at the time right what i'm saying is the difficult decision should be affirmed on the basis of what was before him at the time if anything somewhat what was before him at the time  in a non adversarial process that is in my experience a marathon for the claimant so the employee agency is involved over an extended period of time and that's what our complaint is about it's about their involvement over an extended period of time i do think that rodriguez is right on i would i would i would think that that would be authority enough to reverse the district court i want to also mention a case of an oregon case ponce in the twenty thirteen and  that is also a case that found that there were sufficient allegations to go forward on a due process claim and that was against the department of labor still support found that you could go forward another case i will mention is miller v bulger a third circuit case a go to fed second six sixty this case determined that he cannot affect the federal court's jurisdiction granted by congress under title seven thank you very much