because the bell of body determined that the agency had misconstrued the s s a denial and may of two thousand and eleven what did that tell you that alerted you to the d h s s alleged retaliation that you didn't already know from the reference checking service in november of two thousand  don't have a retaliation clime we are seeing it just as a breach of the settlement agreement is one that that is how it goes if that footnote be interpreted not as leaving leaving the retaliation claim out there but rather just consideration was a final action then absolutely the question then becomes is there an equitable tolling but how do you get past the other issue that's been raised by your adversary which is that she missed the forty five day rule then she learned anything in may that's the missing link correct that's when she asserted that in may she had found that e mail from the social security administration but what does that mean found the e mail i mean it had been sent earlier well retaliation right that she needs to know that there was actually some reference that was given that was not appropriate and we don't have she doesn't have any indication of that does she well it's not because the court proper found that the motion for somebody judgment was in the form of the fence and as the court said the display and we're not looking of the merits of her claim what we're looking here is the government decision to answer the complaining immediately forty five dollars days that me made her claim timely under the claim processing rule well the claim processing law again is based on to this coverage and the district court found the undisputed easier to tell your story motive and how she can probably but isn't that your burden your client's burden i mean we we can all be empathetic with her but the reality as the these if you will points of interest that you say either trigger equitable tolling or other some kind of relief involved you can't point to anything in the communication that would indicate that there had been retaliation something that would inform her that she didn't know before right well she's what she's the evidence that the government has interfere with what application for employment social security administration vice i've looked at that i don't see anything in there that talks about retaliation or suggest any such thing  something in the record we can't just have well nothing out of the well that will be her declaration so the district court you keep talking about with the district court says the district court said that you hadn't produced any evidence of a retaliatory motive and that you now but also these retaliation and that's what i'm striving with i think perhaps my colleagues as well i mean you could find whatever afterwards it's not part of the record it doesn't show retaliation how does that help you well you  saying what they're supposed to this is after that but looking at what you're saying here i don't see words the retaliation where is the evidence what is the district court relying upon that gives you such confidence when plaintiff has not produced such evidence talking about whether there was any evidence of retaliation in the forty five days between the in the forty five days before the time she actually went to the counselor so if there's no evidence then isn't th the appropriate agency for determination a federal employee then wants judicial review of an agency ruling here she must follow complaint differ court within ninety days the final agency action and the administrative we need to even reach this ninety day issue or can we resolve you're i think you're telling us we have to reach the ninety day ninety day issue because the district court did but if there are two ways to affirm in this case why should we reach the ninety day issue if the forty five day issue is easier and if your honor feels the four if i think a shoe is easier i mean certainly  reply below that potentially the conduct after january two thousand and eleven might be able to establish some retaliatory motive so that the forty five year old didn't necessarily apply to those claims  at the time that summary judgment was awarded to get us that i'm really is confused by that your position on this does is the government somehow backing off from its position that the forty five day rule applied and it she didn't make it you're i think that was a position on summary judgment and i think this case were proceeding there was more evidence they could we could make a stronger argument on that and not really answering my question right now as a representative of the government are you saying basically that you want to just forget about the forty five day issue whether or not we agree with that and proceed to whether the ninety day rule has been question but just looking at the record as i have it is i believe for the court it's very clear to me what the court below looked out to decide that pushing or a conduct may or may not satisfy that rule that's our problem so we the way i'm reading the briefs the government saying she didn't qualify for the forty five day rule why didn't she qualify while there was no evidence none of us can find any evidence of retaliation that the district court seemed to be vaguely referring to so there's no reason why the forty five day rule would not apply correct correct and if it does apply then we don't ever get to the trial is sure we don't need to is that correct correct ok yes there are said the four record an opportunity to make on the ninety day issue she didn't raise that issue she didn't raise like will tolling at all your so on that basis alone the courts or not but did she argue that the footnote had confused her and she thought that the proceedings weren't done yet and i believe that she argued that the footnote indicated that the proceedings were continuing but reading the footnote in that way is  request but nonetheless i thought that it was still granting the relief i sought that doesn't make sense and i don't think i can support a basis of equitable toy if that had been timely raised below over your perspective at least in the administrative procedure she was inconsistent on her position the same with the district court and therefore that argues against equitable tolling because in fact she couldn't  well it was confusing and i should have been afforded i should be allowed to call the ninety days because of the footnote but it's the legal label of equitable tolling that's getting out and now i think she made the underlying argument about confusion about the footnote in the district court i think that think that's what you were just saying that she did make that argument but not in the framework of that quibble tolling i think she presented the evidence that she now relies on to make the towing argument below but just in context whether it's timely and in present the argument that it was finally i couldn't find any cases that were like this posture i also don't have any cases your honor what i think makes it clear i one thousand looking at the regulations that govern and ministry of claims from federal employees for the largest from nation makes clear that the retaliation claims discrimination claims those are one class a claim that subject to certain procedures invoke certain policy concerns and are handled a certain way and the there was a settlement of those claims i understand correct she had an earlier discrimination claim correct that was what i want to know is what claims did she make in connection with the contract action that were what what was different that made this into a retaliation thing that was not covered by the settlement in the contract claim so her initial complaint which resulted in the june twenty times settlement her in retaliation for having filed that earlier complaint by violating the settlement agreement of the earlier complaint right the retaliation took the form of violating the settlement by giving her bad references in contravention of the settlement right correct so if i have a similar question to judge smith which is when she says they retaliate against me by violating the cell settlement essentially she's kind of thing both at once right it's retaliation and breach of contract all at once so is there anything that changes do once the agency said this is really a contract claim that really allows us to say there was a big difference or was she just bringing one complaint that could have been characterized as retaliation or could have been characterized as contract references she's alleging both that conduct breach the conduct contract so many agreement and that conduct was retaliatory in nature based on her prior e e o activity so i think to answer a question the theories in a case we don't want there to be two appeals we want there to be only one court proceeding that deals with the whole thing so i think what you're arguing is a little bit in tension with our normal practice of saying you really need a final judgment on all your claims before you can go to court an appeal  who are the administrative television claims are looking at weeding out retaliation we don't discrimination where is the breach of contract claims are just contractual in nature it doesn't invoke the same sorts of concerns as you do in the so i think it's a different situation if she said there was racist fermentation and sex discrimination and those are all going end up in district court but in this situation where she has a breach of contract claim retaliation claim those will always be separate court so it's not a tension with the court's goals even if they were decided all at once so i actually don't know the answer is that all if they're decided all at once the court of claims can't take along the pendant claim that isn't the contract claim or something just to keep it all together i mean here it kind of got divided up but couldn't you have a case where it would all be decided by the agency at once and then all get appealed at once you could but that's not and then you're saying the district court order would have to get divided into two you're saying those are all handled together right and they came out made if she wanted to just review they're going to end up in different courts but how i mean it's one case so you're saying i mean if the contract has to go to the court of claims then why doesn't the court of claims just take the contract and the but my colleague right thank you i did just a little bit of time left to counsel so it was so your last sentence here i just wanted to point to the record where the equitable tolling a was raised by