is we did consistently opposed this action being treated or confined to an individual right of action appeal we that there's a slight difference as to how we characterize the air bill and there's a slight difference of opinion as to the scope of what that remain and should be but the government a honor for the appellant below to actually say this is unconstitutional this is invalid on two to two the a j below authority or power to do anything except impose that regulation and he had no power or authority to find that regulation and constitutional and if we want to go and say well once you give us a preview of what's so complicated well i think you would differ oh ok i'm saying and i'm coming here this morning your honor to ask for a full remain and to give her her full to give her her right to a full chapter seventy five dollars adjudication as to whether she did it or not and the finding that was reached below was at the evidence the agency had was strong and sense it was strong it passed the reprisal test well that's a no surrogate finding for whether she really did it so so i need to find the one whether she really did it and then also the way the judge approaches thing was was he said you know nothing is it is is it issue except reprisal we have  directed an investigation got the investigation made find using conclusions pursuant to the investigation and turned them over with instructions how to proceed  to the proposing official so soapsuds so that gives me and should most people a lot of heartburn right there and whether you want to say harmful procedural error or due process i would say due process so so so that is another issue to happen instead of well there should have been some kind of wall between the two and not instructions  may please the court like to address a few issues the the st issue about whether or not the constitutionality and whether the regulation exceeds the statutory authority and that was clearly not raised below and there's reasons why even if the a j may not have had the authority to rule it unconstitutional you would want to have briefing the a j if they were prevent presented with those arguments may have actually decided to go forward for example with that with a full hearing including the chapter seventy five action and those issues what's your view of what the scope of the well as we set forth in our brief  we do think there's been a couple of issues that have been raised by petitioner that would be fair game the st one is this harmful procedural error that was raised so you agree that that's open for reconsider initial at the decision because he essentially dismissed the chapter seventy five action for the election reasons he didn't do an analysis specifically  i think what we have here is a spin ex parte communication detention issue that i don't think that there was you know that there wasn't really a analysis in the decision of that and then presumably also the agency would have to of hearings here and what was it was there's an extensive ongoing factual ruse an extensive underlying factual record in much of that gets to the whistleblower issues which have this same burdens of proof the same issues fractionally would be prevented and it doesn't make sense to essentially go back to square one on that and it isn't a question that a j is in the best position to judge as to whether the record is as  i suppose they a j maybe use their discretion if there's some additional issue that's raised but in this appeal there's never really been an articulation d of what exactly that is and you know we think there should be other that the whistleblower issues need to be retried again as far as putting on additional evidence you know there's been an extensive record for four days of hearing testimony he went through all the processing that you would like us to tell the age that that was simple or issues out of the case well i think whether or not you specifically prohibit them or not i think that the record has been extensive and if you stand that we have to petitioners counsel is talking about a full remain and which you know again from their brief we really don't exactly know what that means and so we do think that given where we are you know we think that there should be certain limitations and not have to basically put on every witness again especially to go through for example these whistleblowing issues that it has been extensively addressed identify affirmative defenses for this chapter seventy five case from the record it seems unclear whether they ever actually complied with that but the prefiguring submissions indicated that the affirmative defenses that they were raising  included discrimination and included this harmful procedural there so we also don't think if it's remained it below d that it then petitioner can then come up with you know some other defense that has not previously been raised because the error here you know the alleging error here was this election which happened really close to the here so it doesn't make sense to have you know something on the full remain and going all the way back to the beginning of the case that just doesn't seem to you know be resolving the error that occurred and so that's an additional limitation that we would think would make sense in this case remained consistent with you know the discussion that we had in accordance with what issues would would be able to be raised b didn't just walk i really think a lot of time too and i reference that i and i was talking about constitutional conditioning and stuff like that that was more i guess of a consequence as what was happening possibility of mitigation of a whole bunch of issues now no no mr gale may be right and i think the judges in the best decision to determine that to what extent are we've found agency's evidence was strong enough to pass a no reprisal test being used as a surrogate finding for did she really do this which is a finding that she's entitle to undo chapter seventy five so now the underlying factual issues may be the same