that the district court did air and dismissing the case before you had your full time to respond before the full fifteen timeframe and minutes of right had run it your position that's reversible error it's not subject to harmless error analysis and it's if it is such a harmless error analysis what's the harm it's not harmless can you do well in other words if it wouldn't change the outcome if sending it back would be futile i'm asking you whether we need to even engage in the inquiry here whether you suffered some harm by virtue of the heir apparent your disgust the the the argument made by in the in the motion was that i was not a whistleblower because i didn't specifically say that i reported anything to the as i see in the complaint but that's not necessary for that for the complaint  may or may not be necessary to win the case at trial below but it's not necessary for the complaint so you're saying that we do consider whether you were harmed by the error but you were harmed because you want us to send it back so you had the chance to say that you did report it to the f c c i to amend the complaint yes and include you know based on what i've learned the last several months and several other things in the complaint but  harm was that before the supreme court right now is that digital realty trust but the summers where the argument is whether internal reporting is protected under whistle blowing the lose under this is let's assume that the supreme court decides that whistleblowers have to report to the f c c an entire print doesn't count soon that goes away what would you say in an amended complaint i mean can you amend your complaint is you know you reported this to them as i do report in january for the date important to point out he even in the fifth circuit case assadi that case wasn't dismissed by the district court because he wasn't a whistleblower was just it was dismissed because of extraterritoriality issues and confirmed that motion to dismiss was was submitted on may twenty sixth twenty seventeen hearing was scheduled for june first that the attorney that i had at the time he understood i conveyed all the facts and i said well know that they're wrong and but that hearing was cancelled for some reason noted to be rescheduled and then it was just a few days later the case was dismissed and there was no opportunity to amend the complaint there there was no opportunity to turn in a memo in opposition to defend its motion no opportunity to do anything and then let let's just take is the new complaint you wish to file one that alleges that the person you were complaining about committed securities fraud it's not not simply that there's some maybe some reporting report i understand but i guess to be a requirement to report securities fraud yes the i don't look through your complaint it's attached to your your brief and it alleges that the person you were complaining about fraud writes posner complaining that somebody at the chicago stock exchange is you is taking stealing pencils and taking them home or is having an affair with a is the person you said was committing improprieties and the complaint is you were fired because you complained about centaur but i can't see anything that alleges that you were complaining to the stock exchange th it is you know punishable he should have been fired and he wasn't you make that allegation and you end up being fired is there a dot frank problem i don't know the the the th ing that i ultimately complained about that the major thing was that he was basically forcing my team to  require broker dealers that we examine to put in procedures that were counter to chicago stock exchange rules and the chicago stock as well and they have trouble with that  in what manner and some like securities fraud it doesn't sound like a violation even of the rules of the f c c sounds like you're alleging a violation of the rules of the chicago stock exchange which which are covered every rule that the scottish stock exchange passes has to be approved by the f c c it's not strictly securities fraud that that's an issue and going back to the reason for the complaint in the first place that was because the chicago stock exchange was was did not have procedures even though i brought this to their attention to prevents trades from being executed on the exchange that were outside the national best better offer through  through of an act exemption that was it's called a qualified contingents rated exemption from without getting into great detail about this there was this expose the exchange to possible fraud and i think in fact fraud did occur on other participants that were forced to have you know adverse prices this was brought up you know leading up to when i eventually made the whistleblower complaint and that's really the the the event that's qualified me as a whistleblower that i may that's legally required required by by this congress stock exchange of me and that's protected that's protected activity and they can't fire me for that going back to just the procedural errors thank you counsel ok i'm  information relating to violation of the security laws to the f c c therefore he was not a whistleblower and therefore was appropriate well therefore therefore if digital real to trust comes out particular way it is the supreme court will resolve that disagreement but law isn't changing one iota well the law that would change your honor is what do you interpret in the statute when the statutory language is clear if that proper because every plaintiff has a right a right to amend a complaint wants no question judge wright and the judge said no you can't well that that's a problem district judges can't override the rules so we need to figure out whether the district judge is care or was consequential there are a great judge may depend on the way the outcome of digital reality truss agreed may depend on what mr martin soon could plead consistent with rule eleven in a new complaint it may depend on the outcome of the verb for the case which is under advisement in this court and it may depend on whether the complaint alleges a violation of the securities laws were the rules issued by the f c c which was the agreed judge the the the lawyer remains however when you have a statute which is unambiguous thank you apply the statute as it's written without resort to looking to administrative  regulations for a system and the statute as written require the whistleblower to provide information relating to the security laws screw law violation to the f c c and there was nothing that in the original complaint the dismissal therefore of the original complaint subject to your honor's point and i think it's a it's a good law that you're entitled to have an amendment was what's proper the question is correctly point out whether the failure to give him that opportunity in dismissing not only the complaint but the action is harmless error we submit your honor said it is harmless error and that it's harmless error because are his words not mine and although the judge in his original ruling on that on july eleventh said i need to see your medical plain in order to rule six days later upon reconsidering that he said i don't i don't need to see the amended complaint because your proposal to amend to add language saying that you had prior contact or prior interaction with the f c c does not meet the statutory standard of providing information relating to violation of securities laws to the f c c mr martin since statement today that he would have given an opportunity in and a new complaint allege that sometime in january of two thousand and fourteen more than two and a half years before his terminations that he submitted something to the f c c respectfully should not be considered by this court because number one he had the opportunity on the motion to bake a to articulate what he would have pl and he didn't do so and number two two and a half years is is i think under many of the decisions of this court too long to establish any sort of temporal proximity as requirement usual on the verge of other failings but the district court didn't rule on any of through facts even though it wasn't a complaint that would have established that he was a whistleblower the structure of the of the dodd frank act supports an interpretation of it consistent with its plain language the structure of the act as well as its legislative history the legislative history states that they were creating a new robust whistleblower program designed to motivate people who knew of securities laws violations into a system that you just told us we were supposed to follow the plain language of the statute anybody who believes that should be standing as far legislative history the legislative history is consistent with our reading and the district court's reading of the plain language of the statute that was the only point of referencing that so then that brings us back to the procedural issue which is what mr marks and raised in which your honour's raised is it is the error that was caused by the judge not allowing him an opportunity to repleat is it harmless or not and in light of the fact that he c and we would argue today what he has said today is two and a half years before his terminations it is unlikely that that creates the temporal proximity usually required for a retaliation claim to stand that any such amendment would have been futile and therefore it's harmless er you it doesn't look like it now we are going to need some supplemental filing in this case i don't you know you you never can tell but in the event we don't decide this instantly there's always the possibility that either the supreme court or the panel invert for will decide first and that those decisions will affect the outcome of this case yes your honor we want the parties to file supplemental memos within fourteen days of either verb her or digital realty trust advising us what consequence you think those opinions have and if those cases are decided at separate times that may mean two separate  right we we don't guarantee that we won't decide the case earlier but if we are still cogitating when those cases come down we'll want to know what their consequences are all right so it's a conditional orders separate memos to be filed fourteen days of both for and digital realty trustee of this case is still under advisement and if they can doubt it different times you want separate brief so you'll get your rule until both of us have submitted no we're not saying when we will rule we're saying that if the case