arguments based on law facts and the record and i do not anticipate unless specifically requested by the panel that will be put in a position where i will be testifying as decision there are three issues before the court and all three should be second this court should find that the board abused its discretion under five u s c seven zero six two win to deny petitions motion to reopen based on oversight and third this court should find that the board committee clear immaterial legal error when it fails to consider this court's controlling gregg's be detrimental reliance in a stop or standard in its final decision with respect to the first issue this court in mccarthy held that is not deprived review of a board decision if it's in the form of a clerk letter the whoredom carthy held that the letter an issue was a sensitive decision that had a real impact on position of rights and it is certainly a can to a final order or a final decision of the board if you were to look at the letter in question under mccarthy where th the file logic if this court were to find that simple reference to a citation and the date and mccarthy case do not equate to finding that the you letter is the final decision or the board what is it in your view that distinguishes this case let's say from a case in which someone has filed let's say five successive requests for is denied by a letter saying the case has been closed it is closed it remains closed and then wants to take that letter on appeal to the court of appeals would you argue that board's president showing how the application of those precedents would result in a different outcome and the timing is also critical your honor because petitioners motions to reopen were spent a year of almost two years and there was one motion to reopen right after the final decision was issue and it provided much the same arguments as in the second and third motion to reopen th that so here's your question your honor it would be an announcer based on the timing and the substance of the motion to reopen of the appellant so if if the in my hypothetical case if  filed was done in formal form with you know a motion to reopen and cited even if it was the same authority that had been previously cited in the second through fourth request to reopen it would still be by virtue of its formality and its citation of authority a final order it when the clerk denied it by letter well i think what's critical in your hypothetical your honor is that didn't appeal the first four but then sought to appeal t if the court were to use a separate analysis to find under its own a six to a that it somehow doesn't have authority to review jurisdiction to review a glare denying a motion to reopen that would be contrary to  no oversight all three of the dishes mostly to reopen were based on oversight so also it's critical to know that the board in its brief did not rebut or argue present any argument  for this court encampment plainly held a camp in was a case of statutory interpretation there is no issue of statutory interpretation in petitions case and camp in plainly does not apply what does apply is this is a conflict of laws between this court's precedent in camp in and this court's brigs be present there should be no vital mechanism for petitioner to use the that same specific facts and argues that if somehow the court sides that positions arguments regarding rigsby are wrong are iranian and under federal circuit rule thirty five a one petition respectfully request an on preview of y was specifically issued to prevent a critical distinction as well your honor is that there is input is in the board's brief there is an also in the decision below before the board there is the statement that the board's jurisdiction cannot be expanded and there under a new camp in and as petitioner has repeatedly argue that there is no unlawful expansion of the board's jurisdiction in his case the proper application  this board's of this court's rigs be detrimental lines in the stoppel standard would properly fine jurisdiction under chapter seven five eleven b eight so any argument saying that there is an unlawful expansion of jurisdiction is false that those petitioners could not prevail with their stoppel argument and those petitioners were basing a subjective thought that they only thought that they were appointed under  hiring authority than they actually were they had no evidence no basis whatsoever to support their purely subjective thoughts and certainly an assume would appear to be frivolous claims and yet this court establish no unlawful expansion of jurisdiction and petitions case under this court's analysis which it is required to follow the proper application of grigsby would follow the proper lawful the court this court should dismiss mr jones appeal because the correspondence that he received from the m s p b s clerk was not a final decision it was not a final order and therefore this court does not have jurisdiction third or so requests to review the board thought that maybe in fact the government did have some responsibility for some of the state of some sort is your position that it's too late tonight is petition for search yari so this case has been litigated to the supreme court and yet we're back here and the same arguments are being made today that were made back in two thousand and fifteen of this court so that is not in question at this stage to  does it have to could be on its own motion often these the most common circumstance is a party will file a petition ministre to petition for review with the board and going through the petition for review they end and this is the most common scenario reopen on its own motion so it's often prompted by a filing whether it's normally the petition for review filed to the board that the prop the rios and they could reopen on their own version but not jones requests mr jones request may prompt it but it would ultimately be on the board's own motion in fact there's nothing by wall or regulation that provides for and requests for reconsideration to the board in fact is only one individual who has that right by law and regulation and that is the director of the office of personnel management who by wa can request that the board reconsider his decision and reopen his decision but no other party not mr jones not even agencies have the right to ask per case to be reopened and in haynes this court started with that with this language of history of statute and found that it must be a final decision or final petition for reconsideration by any party and a p a final decision is defined as one that's it's either initial decision that thirty five days have passed and it becomes final or petition for review has been filed with the board and the board  what do you see as the scope of the mccarthy exception if you want to call it that to the haynes rule it seems to be an extremely narrow exception and several times in the decision the court says under these specific circumstances and the retroactive to op ending cases and mr mccarthy's case was one of those pending cases no but it's a suppose that someone comes in and says there has been a change in the law the board looks at and says we don't think so the question for us first question for us is do we have jurisdiction where that appeal is taken to us from that decision by the board and under mccarthy since mccarthy refers to a case an intervening change and for sure are is it enough for the petitioner to say there's that and enter the change in other words put it this way from my perspective do we need to decide the question of whether there actually has been an intervening change in the law in order to decide the preliminary question if we whether we have jurisdiction of the appeal or in mccarthy the court seemed to do that seem to decide that this was an intervening change in the law although i i don't think there was any dispute because congress had passed these whistleblower protection enhanced meant it was a work protection and halfman act amending the law and the and there was also notice bute that this was retroactive retroactive a fact which is not always the case and the third thing the mccarthy were pointed out was that this was the first motion request to reopen the case here with mr jones assisted request seeming to allow for two mccarthy type exceptions one for control changing the control and loved one for oversight in mccarthy it seems he went to great pains to say this is only about changing the law and whether we have  reopen premised on other grounds will be decided today and that can sort of right after site so i think the court was well aware of all since the statement about two possible exceptions to  review that's why congress believes if there need to be judicial review of rimouski be decisions because every so often there would be an oversight and the board itself if if it's considering whether it miss something might reopen but that's different from what this court would use as a jurisdictional standard in the the board has discretion to reopen on its own motion at any time and so a mere oversight and in looking at those decisions i almost always because the oversight is almost always because there was some change in the law either a decision that came out that maybe the board missed or a statutory change so in in reality it normally that there's some change in the controlling off that was not reflected in the courts final decision and that's why the core reopens on its own motion but looking at it from the perspective of this course jurisdiction it makes sense that this court be a jurisdictional difference depending on which officer of the agency signs the piece of paper that disposes of the claim if you're right that this third request by some other office or it within the agency that is assigned the task of disposing of repetitive requests for or if there were it's generally seen as a ministerial role and that's why the court would do it fam that's that's the practice but i'm trying to see whether there's any legal significance to the fact that it's the clerk as opposed to the board less dancer and gave me some pause because it suggested that was or might be  what they said instead was we have the authority to reopen cases on our own motion we've looked at this case very clear closely and we've read all your authorities in your brief with care and we've decided that this is not a case in which we feel it's necessary or appropriate for us to exercise their discretion to reopen the case period has that somehow converted into  ministerial dismissal well under haynes the court looked to him as bieber regulations to find the definition of a final decision and since there's nothing like what you're describing in the except in petitioners argument would deprive the administrative process and this courtroom view of finality it would be possible to reopen the process even after someone has litigated the case all over the supreme court to start the ball quirks correspondence does not constitute a final decision under the regulations of the board we asked this court to final decision it was issued in two thousand and thirteen and then there's a letter from the clerk responding to mr jones correspondence informing him there is no right to reopen at the board there is no there's no petition for reconsideration in the  regulations for any party other than the director of o p m and so that's why this case should be dismissed for lack of jurisdiction it's simply not a final order or decision there already has been a final order and decision in his case right to request reconsideration and in fact there is no right there is one individual has that right and it's not mr jones it's the director of the office of personnel management and and the court certainly has jurisdiction to address its own the board's brief in the underlying appeal to the board argue that it would have come to the same result if it did apply brakes nowhere petitioner is humbly asking for the board to apply this court's controlling precedent there is a conflict of laws between this court's decision in campaign and this court's grigsby decision that must be corrected it must be or there going to be other petitioners other parents who are going to suffer the same manifest injustice  petition or suffer for more than four years a group specifically sought to prevent unfortunately this court it's not uncommon that even this quarter or the board would conduct oversight familiar with the supreme court's decision in office of personnel management against richmond decision that is often cited as bearing heavily on the question of stoppel of the government and particularly in personnel cases which that case was of course do you think that that case effectively deprives creation be of any continuing authoritative force in the extent that  hundred eighty four case i think from this court in one nine hundred ninety the supreme court in the richmond case said in effect in these employment situations this is maybe too loose a characterization no request for money damages here the requests for petitioners right to meet his burden for jurisdiction before the board petitioner is being withheld from even being able to meet his burning has his burden to respond so remain is is not required in this court could actually reinstate petitioner with ruling following grigsby in this case