whenever you're ready to help me with the pronunciation of your last name you know stein and yes sir my name is paladin or sign on with public employees for environmental responsibility or pure and we represent the petitioner in this case robert mccart y there's really not very many issues left in dispute at this stage of this case the board has agreed that the whistleblower protection in ansan act the bill u p a applies to cases like this one which were pending on appeal when that law became that but my question is and then you can answer about part a question is if you get not then what are you saying that you still have an opportunity to reopen it by a motion to reopen to the board yes and the reason is because when we were on rehearing before this court and when we filed the cert addition the board had not yet decided the case of day versus m s p which was the one that decided that there was retroactive application and in previous cases once the board decides there's retroactive application then you can come in and reopen and say well applied to me but at the time you say in previous decision and it was a very hotly contested case the day case as to whether there was retro half a retroactive application of this portion of the whistleblower protection handsome next section one on one which has to do  saying it applies to cases that are still open and it applies to cases that are now closed that were open at the time yes and the board does not disagree with that on the board of you know that's not one of the points it least as a fallback position the government is saying if we have jurisdiction to review what the board did here what the the answer is you go back to the o s c for an exhaust under the exhaustion principles friendly to people who are not lawyers the exact what the exhaustion requires is that you give them information you give them information what are what protected disclosures are you talking about what are the adverse personnel actions that you think were tak in response to those disclosures it's not there's not a requirement to put the correct legal live label on them what mccarthy did here is he put those disclosures the ones that were in his legal memo before the o s c he said hey these  was the reason i just knew that hardly you took me aback and he said it's designed to be friendly to persons who are not lawyers he is a lawyer he is a lawyer and because he is a lawyer this is what the the board is trying to hold this against i did not put the label of protected on the disclosures but the facts of those disclosures were before the o a c they had the opportunity to conduct an investigation they had the opportunity to possibly ordered leaf and that's what the exhaustion everything has been found everything has been litigated well mallets diane is that why the new lots are stuff why is it not new the o s c investigates and then we just some conclusions about whether there's a violation the first time the stace was there the allegation was the oh i g the memos were protected disclosures and they concluded no violation on that basis they made it's a different case now because the law is different now he's remedies he exhausted the remedy by going to o s a place he placed the those same disclosures before or c he did in a supplemental submission where he even went at length as to why the disclosures in those submissions met the requirements of being the kind of disclosures that are covered by the whistleblower protection act he he explained all that the only thing he didn't do is put a week a label on it saying those are protected and that's not something that's required or  reasonable allegations you can have here with respect to what the protect disclosure as would have been the that's the law that the a westerner had that so that was the allegation they could not have they would not have investigated a case involving a rancher to question dealing with the legal memorandum being protected because that was not the law clearly why is that the how can you be saying that the case that was before them originally the that exhaustion applies here dealing with different legal are what would have happened if mccarthy had put those legal memoranda before them inflamed they were protected they would have said no they're not under existing law and mccarthy would have been eligible to have this case reopened because then he would have administrative remedies that seems like an anomalous result that because he was an attorney and he knew the law and he simply didn't put that label on it unlike other litigants you know and there are real against it we have you know cited like the not sooty case where the alleged falsely that something was protected and they got to get their case reopened because they didn't they weren't conscientious like mr mccarthy and looked at the law and didn't try to allege something that wasn't true and that we're not saying you're not going to not like a court you don't have to make allegations of law in a complaint you're just supposed to bring them information and they investigated mccarthy did that they investigated there's no new information there's nothing new for them to investigate and you right it's a new case it's a different issue they're not investigating now whether the motivation to fire him was based on disclosures to the l i g e they're investigating whether or not it was based on the disclosures right legal no man would see that i think that right i mean there they they would be investigating an entirely different question but that is the problem with that is that this the board and the score have already decided based on a fully developed record that mr mccarthy was fired because of disclosures that are now protected the the board listened to mr ruth's testimony and gave it credit  and and this court also gave it credit that he fired mr mccarthy based on his legal memoranda so that factual finding has already been made there's no reason to go back and start all over again and over and see this court has already decided that all that needs to be done now is to apply the new law to what's already been found in this litigation but that the disclosures aren't in the non disclosure would be to a different person they're the allege render at an earlier date which gets rid of the time problem from the previous case and it's technically a different disclosure there's no label issue it's just a different case a square has pointed out i think i can address that if the last argument that the petitioner made that at a record has sat and that this different case and presumably a much stronger case the other issues are whether the clerk's letter qualifies as a final word or i argued in my brief that pains is a political here i think the legal analysis in ha upsize i know it's factually distinguishable and that case there were multiple requests whereas here they were completely non substantive i mean they were in no just i mean i don't know the board may get fourteen thousand requests to reopen  this distinguishing it doesn't well i understand there's there's really nothing there i mean you're i thought your backup argument is if you decided we should construe the board having analyzed this and decided that we unless certainly sounds like it and of an important issue that needs to be addressed but when you look at it it's it's a change of lead but there's this exhaustion issue right that makes the issue not within the and that that doesn't abuse of discretion argument that in and out completely under review also the board could say even if you were absolutely positively correct and it would be arguably case that's it i think i agree with you we don't know how that case is going to turn but  a different case and it's a stronger case than the one he had earlier you think he couldn't get review yesterday i think seventy seven alone gives the board you know a ferry to reopen and reconsider case other its own motion the clerk sent a letter saying we don't like your your gender so we're not going to do it we can't reveal that rhetoric i think if a letter like that without it would pretty ten supreme court case i don't know how to pronounce it you thank you john i'd like to speak to his first point that there would be different things to review and that the agency in the board could have different evidence if this case were brought to new with the disclosures in the legal memoranda and i like to say that that that actually is not the case the legal memoranda were not only put before the o s c but this court and the board considered them because mr mccarthy argue that he couldn't be fired based on disclosure which later became pretty then later became protected and this court ruled on that so those memos have been in this litigation all along and if as i said before that the board in this court ruled that mccarthy was fired based on what are now protected disclosures the only remaining issues would be one are those particular disclosures in the legal memoranda protected this court can decide that on  record we cited a case in our brief drake versus agency for international development where the court said well based on the record before us we can decide that that's protected regardless of the fact that it wasn't decided below the remaining issues are what were the legal memos a contributing factor to the decision to fire and can the board proved by clear and convincing evidence that it would have fired mccarthy without the legal memos and both of those are it's a logical impossibility to decide in any other way than in favor of mr mccarthy because the firing was explicitly predicated on those legal memoranda not only in the letter that  mccarthy but in mr reed's testimony in the board's decision and in this court's decision all of them decided that he was fired based on those legal memoranda so there really is no reason to go back and start over i if someone does legal memoranda and they reflect or they include inappropriate subjects they disclose confidential information they were done on work time and they really didn't implicate any work there are circumstances in which a discharge based on either the content of the existence of the legal memorandum would be justified notwithstanding that globally we call them protective disclosures isn't that the case at least hypothetically yes in that hypothetical it is the case but in this case it is not because commissioner with us already testified the record has already been created he didn't claim any of those things what he claimed was at the memos were contentious divi and incorrect and this court in the greenspan decision said that that's not enough to take something out of protective disclosures i mean imagine what a huge loophole that would be in the whistleblower laws somebody received a protective disclosure and could say i don't agree with that i don't think it's correct and i think you're being contentious and divisive and therefore it's not protected that won't work those other things were not claimed and we can have mr ruth come back and then try to change his testimony and try to change the reasoning as that i was trying to find a case that there is a case and i'm sorry i haven't found it yet in which the board because of an intervening decision and it is in my  sorry because of an intervening decision which then decided that a particular law was retroactive they decided that then a case could be reopened really other than opening up your site ok i'm sorry about that and i look at it i