from federal service after which he thought an appeal with the m s p he also alleged that age discrimination was involved with his terminations and therefore became a mixed case with the m s p b prior to the administrative hearing with the a l j he w timely fashion in other words within ninety days in federal district court in reno nevada what ensued was a motion to dismiss initially on that case which were called thanks to the one in which they moved to dismiss based upon a failure to exhaust grounds could reopen it then he addressed the issue that was presented at that point in time we attempted to reopen it the m s p would not allow us to reopen it so we did come back to judge acumen and the issue was again presented the procedural posture within which it was presented happened to be renewed action because he dismissed previous action without prejudice to bring a second action and there was no issue regarding limitations periods do that order the district court considered the new briefing did not have i believe subsequent arguments i'm sure that the district court considered the transcript because it ordered the transcript on the previous hearing and then made a decision and the decision was not based it address the question that was left open in stevens versus the department of treasury and that question is whether or not under the ada a federal employee is required to exhaust his administrative remedies our position in this appeal and now below was that as justice stevens in his concurring opinion indicated that there was no exhaustion requirement in the eighty a and therefore offer shorey you could not have an abandonment argument to apply as a which is twenty nine c f r sixteen fourteen that's a regulation and judge mckibben solti addressed the regulation he did not address whether or not the a d f a the statute that congress created this remedy under addressed whether or not a final agency decision was necessary in order for c to federal court and as indicated in a justice stevens concurring opinion in stevens vs the department of treasury what as he saw what the courts would have gone this way the the third circuit the first circuit in castro the believe the third circuit a trial these other cases that have been cited in the briefs and in the decision below have have a grafted upon this statutory scheme and analogy or by analogy or requirement similar to that in title seven where there is none that exist in the only circuit that there that really has candidly addressed this issue i think is a six or five and lankford and they like that and they said there is nothing there to require a final agency decision under the eighty e a there's doesn't make a difference of the action is still pending at the time of the civil action is brought out that issue isn't here thank goodness because in the fact decision which they argue is not applicable anymore but there is a part of that back to fish in the very last paragraph they they say that the primary purpose of the exaction requirement is to prevent simultaneous proceedings and i would i would imagine  that if that issue were presented to you you would have some serious potential concerns because you're you're you're you're double tracking it and in that case in that instance it's not here though fortunately for this court it doesn't have to address that issue that would he does several other things before he finally gets to federal court but in that case what happened was he filed the m s t v and then filed with the e e o c and you can have both and so that's that's another situation where you would have some serious prudential considerations  play where you've got a complaint party a charging party attempting to dual track things and get two bites of the apple essentially we didn't get two bites of the apple here we decided when i got involved with the case and i don't know if this in the record but just so you know i became involved and i did not want to go to that hearing i did not want this aegina catered by the administrative law judge and i advise a client that we could get out of this i reviewed the case law with respect to this and and i knew this issue was going to come up i was almost certain that was going to come up and here we are today addressing it we're not addressing it because i'm concerned about my potential problem in advice in the client to drop that we're addressing this because it's an important issue and the question i think really comes down to finish court look as the court processed and then you can treat that is finally just to decision and only then can you go to federal court where the congress does not impose any such limitation where congress has imposed such a limitation the courts have been correct in coming down and applying  consideration the requirement that if you undertake to exhaust your administrative remedies and abandon them you're stuck but in this situation you don't have that and therefore by imposing that credential consideration in this case under these fa is grafting a prudential requirement or limitation where congress is not even spoke or spoken and i think that would be inappropriate for this court to to undertake that type of judicial legislating our congress has been silent and we know that we're congress has wanted to speak about the issue it has done so it has done so very clearly under two thousand and sixteen title seven requiring exhausti a hundred twenty days deal with the issue after which you can treat it as a final agency decision here on the sixty second day we withdrew ok so we didn't exhaust the one twenty but i think it's curious if you look at i believe twenty day limitation is is a fire under the agency's rear if you will and not any kind of effect upon a final agency decision as i understand  so that's another distinction and i'm not i haven't thought through how to if if if if you are necessary to try to figure that out because again congress is not required finally to see decision whether or not the one twenty is a final agency decision or not is is beside the point in this case  we did undertake in a timely fashion to trigger the the procedures that were in place as congress has required we time we filed the action after concluding the administrative proceeding and to say that we abandoned that proceeding and therefore didn't age discrimination complaint need not protein to any previously initiated administrative process before filing suit in district court i would submit that that is superficially appealing but it would be erroneous there are two separate parallel statutory regulatory schemes available for an age discrimination complaint one is under title twenty nine and the implementing regulations  they are separate and distinct regulations with separate and distinct requirements and this court in back made it very clear in footnote one at page two hundred four of that decision that had nothing to do with anything other than regulations namely the title twenty nine regulations in footnote one it states quote we emphasize their holding is limited to age discrimination claims governed by e e o c regulations and then there's a case  terminates or filed rather if the claimant files a parallel civil action doesn't that terminate by the claimants act yes ok so in this case the claimant effectively  out sixty days and some mission where they don't get paid but that doesn't mean that's what you're reading into it though that that's a congressional exhaustion requirement that that is the congressional exhaustion  must having brought it bring it there while the m s p be to make the decision because the board is directed to decide the case that's before within the time limit that were also mixed case cases there's a third circuit in particular and the seventh circuit in mcginty again preceding this case which may be implicated by the stevens decision but following stevens the second circuit withdrew that that because farina before pursuing to get anything see decision whether it's  we are bad this some evidence some reliable evidence standard  the language in there is that you've got an expectation of prole and that it's on the board's burden to find and it's a it's a this is a low threshold it's still an agency decision is just some reliable evidence to show that you cause an give them some framework that they work through and i think that the structure is set up that they're entitled for all and last the board finds evidence of unsuitability because they're has an initial particular hearing i believe when mr biggs was convicted that it was two thirds of the minimum term of twenty five years plus whatever given whatever custody credits i think in his case it was a great sense of twenty five to life and that's was fifteen years along  was i think it was fifteen years along the way and then even then you also have to keep in mind that this if one is found suitable as mcwillie in case it is a prime example he was found suitable for all in seventy nine i think from a from you know originally the argument was an attack on some evidence now i ask your work a why isn't there some evidence for saying well the thing you'd like to really address is why you didn't you say he didn't get a fair hearing but you haven't addressed why there isn't some evidence you're just saying we should the district court should have been determined that this was a bogus hearing no matter if they did the right kinds of things to satisfy some intellectually analyzing it is between there are two separate problems with going straight to the some evidence standard and doing everything else that we raised in the brief one is that the district court didn't have the transcript of the prall hearing so i think you really have to look at the parole hearing transcript not just the decisional portion that they had to assess the some evidence in that record in the brief and i don't really have anything to add to it it think that a number of the standards that this report found and even others that  and i think it's important for the court to look at the penal code section thirty forty one b where it's specifically states that the gravity of the conviction offense the time your gravity of the conviction offense should be considered to determine whether or not public safety requires a more lengthy period of incarceration i think the boy did consider that and found that because of the conviction offense more lengthy term of incarceration was warranted we're looking at the first hearing i got it correct ok so when the when he comes up what is it that the statute commands that there be a parole date unless the board finds that a specific language actually two separate decisions one whether or not the inmate suitable for parole where there is a number of factors that are considered that are laid out in the california code of regulations and in the penal code and then the second decision if they are found suitable saying what they were going back to the nature of the fence and what he did during the period when he was seventeen and that was the primary reason correct and i mean the california supreme court address not a blanket parole policy that the board and the governor did examine each case and consider all the factors they gave in each individual consideration which is what was required under the california regulations he agreed to transport the murderer to the scene of the crime which he did he actually switched out his car so he wouldn't be recognized he then watched as the victim was bludgeoned and stabbed to death and then he met his crime partners after the crime where there was an exchange of money  the whole purpose of the murder was to prevent the murder victim from testifying in a crime and the board properly considered all these factors and weighed them and decided that they presented to some evidence a primary reason  actually watched the murder he did a he didn't stop it he did actually bring the person who committed the murder back to more carefully dispose of the bodies so he fully admitted to this because the patient didn't watch i'm not  as far as transporting the killer and even worse in my mind went to the killer back so that the killer could we dispose of the body once they found out he'd just been dumped but he didn't watch the murders and if that makes any difference then attorney general's argument policy has continued i get knowledge because you're smiling at me a little bit that this is a difficult thing for him to prove but that's not my point is when i think it's an issue that needs to be addressed you know i think we understand