grapple with whether there is ambiguity in the statutes use of the term employee this is an important step because without concluding that the words in the us the court is not permitted to consider congressional intent the legislative history of the act or even the implies the current employee globally so you're giving out you're giving up on the argument that it's not ambiguous and yeah it covers former employees i think that a definition that was not ambiguous and covered former employees it is difficult to see how a layman's use of the term employee was not would not either or both the question of current employee or would very limited attention to robinson only addressing the decision in the last few paragraphs of the of the opinion that robinson court says that in order to determine whether or not the term i does not say as we just discussed ways that could have made this completely unambiguous and plain would have been to say current and former employees have a right to sue or to be made whole the statute could things so under the st prong of whether the specific language of the statute itself is ambiguous we have to say yes the pa court found the tempura limitation in the list of those in the specific context of the provisions the let's talk about that entitle an employee to be ringback made whole if the employee is demoted suspended threatened harassed or any men are discriminated against in the terms and conditions of employment terminations emotion and suspension could only happen to two current employees then we should limit the other terms to also current employees but this doesn't give full effect to those terms it doesn't explain what congress included terms that could cases that follow that line of reasoning say that you cannot discharge a current and former employees so it is implicitly apply only to a current employee you cannot reinstate a former employee and you  robinson analysis next should turn to the broader statutory framework and the effect of the remedial on the remedial purpose is a word is construed merrily but this court doesn't even have to go into that analysis because we have extremely clear legislative history i usually so in which the introduction of the act stated that the purpose of the two thousand and nine fair and then that was to broaden the scope of coverage protection for  also clear that there would be great that for mental effect to remedial purpose of the statute if the court were to narrow application ringback of the protection to only h have represented only later a relator who case of me having already been terminated for internally reporting the fraud would have no protection and no incentive to file false claims that case and report fraud of the government if there is no protect in perception police for retaliation similarly an employee ringback who is a current employee that fears that then we terminated shortly unless we think we can get that case file for their terminated they would be in great danger so what we ask ask you quickly about the facts of the case mr felt then made his reports while he was still an employee yes your honor he didn't make more reports after he was fired no your honor he thousand and eleven and he did his employment did not terminate until the end of two thousand there so during that time the case is under seal and when he tried to interview for other positions the law was able to under the assumed a true acts relating we asked this court to decide that as if he had left the want to employment without ever having been terminated or discovered as a whistleblower but upon discovering that the want began to blacklist him  industry that would be an act of retaliation independently of whether he had been previously terminated whether he had increased the previously ringback sever any of the prohibited but my understanding is the facts are that belmont knew of right here when judge murphy decided that the false claims act specifically section three thousand seven hundred and thirty age does not apply to conduct that occurs after the employment relationship in this issue and i actually agree with opposing counsel here the statute is an ambiguous you don't go beyond the language of the statute in fact borrowing from your own prior opinion if the statute is unambiguous the inquiry begins and ends with the language that was actually used and that was very sound analysis that this court my because it's built on the cardinal rule that congress means what they say and they say what they mean importantly in this case and in fact in responding to you judge bush the dr felten quarrels with whether the statute means what they want it to say and they argue that it's ambiguous and i would respectfully suggest that that's contrary to what this court has already decided when it was asked to look at who is a proper plaintiff under the statute in bandra in vandar both looked at and applied the plain and ordinary meaning of the statute to determine that it did not apply to a prospect and although the issue here is a little different in my mind i think of it as vander both involved the important question of who who is a proper play here what dr phil in his teasing out of the usual what is the conduct that he complains of actionable under the statue it's a different issue but the same discipline and interpret in the one i will address your question directly but i just want to make the important observation that robinson had been decided at the time vander bowser decided and as i'm sure you are you know importantly this court did not look to robinson to help define bander go this court decided independently without considering the written robinson that the statue was on in big us but if today you were to say we're going to go back and look at it we're going to consider whether robinson applies i would respectfully suggest to the court that it doesn't and the reason it doesn't is because it's a very different statutory animal in title seven justice thomas pointed out initially in his opinion that  another and the judge and justice thomas said that could mean current employee and another or former employee of another and the reason he got there is because other provisions of the statute for example if he were to read it as current employees all in the section of the statute in two thousand e's subsection three would have a very different connotation if only thing prohibited in two thousand e discrimination it says that it's unlawful unquiet practice for an employer to discriminate against his employees that is the only prohibited herb used to describe the ana and so justice thomas wrestle with the the issue of how do i give meaning to that if it doesn't apply to somebody after they're no longer and you have a very different statutory mechanism to work with here in our case congress did give you much more consultation or much more context excuse me than simply the word discriminate they provide the sport d with the benefit of a statute that lists prescriptive activity that on its face applies to somebody who suffers retaliation during the term of their employment for example recognizing we have to give each of these words meaning for justice thomas russell with those discriminate applied to somebody during or after employment you have discrimination term and title seven could net that it could apply to both former or present employees it could your honor if the statue didn't say what it says and i don't mean that in any way to sound like i'm trying to be cute with you but the statute has specific verbs that are listed and and we are supposed to use the associated words and to read them to all mean the same and all of those birds tie out to the important clarification of in the terms and conditions of one which only means something if you're talking about affecting somebodies ongoing employment and that's been the possible case that this part case seem to say that that in the terms of conditions of employment only modify the last point not everything in the list is not correct that is what the parts or help your own or it is but but importantly that wasn't the basis for its opinion the basis for its opinion was that the other birds that talk about prescriptive conduct necessarily imply during the course of the employment  very importantly in answering the question of whether it should apply or congress intended for lee's words to mean that it applies to a former employee i would ask please that you also consider this issue in  the extent you're wrestling with whether or not that only applies to current employees we believe the subsection to very clearly answers your question because here to help here in section two congress tells you and what do we do about if it happens then what and subsection two talks about types of relief that very clearly apply if somebody suffers harassment during the term of their employment and in order for you to get to the question that actors belton is asking and start walking down this legislative history and other analysis that he's asking you to consider i respectfully suggest you have to ignore the expressed language of the statute before it doesn't that provision say it includes these these this type of a relief but it doesn't say that this type of relief is exclusive to what you can get and it's that you you're right that is what it says and here your honor what i'm informed by is the fact that we have to look at what decide this case the way he's asking you leave a group of people with grand a few very important points a clarification that i'm sure you already know from the record number one dr felton does have a pending claim for conduct that occurred statute it's conduct that he claims is retaliatory that occurred during the course of his employment and he seeking redress for it you importantly dr bush i'm sorry judge bush if you had asked the question do all of his other claims relate to the answer to that question is no they do not the district court has already decided that they do not what we're arguing about here is a separate bundle of alleged conduct that only occurred after he was no longer an employee and that's not just my argument starting in three thousand and forty four dollars the trial court record judge murphy outlines his analysis here and explains why the claims don't relate so dr itself does not represent a group of unprotected people number one there are separate statutory sections that apply to relate or is and provided a remedy for somebody even if they were to bring a place after they are no longer an employee nd doctor  belton had the opportunity to pursue a constructive discharge one which also would fall under the statute but burster t j of reasons that i don't know he he chose not to pursue that within the time the statute provided if he represents a very unique group of people where the statute definitely protection employees agents directors who claim to suffer retaliation during the term of their employment so  realize i have more time but i'm not just going to take it our position is as straightforward as i'm trying to suggest this court has looked at the statute before and determined that the words mean what they say and it's unambiguous d if you follow that saying process here we believe you will appropriately come to the conclusion that the trial court reached that was well reached and aughts case by the ten circuit although i realize it's not binding precedent and you i do think it's very important analysis that helps show that this court in bangor vote was on the right path and made the right decision and your decision here would actually fall in line with what a majority of courts consider this issue could decide so what we understanding of that relationship requires as the court said no peculiar reading there is no need to go beyond the plain language of the statute to say that congress did not intend that the pool of anyone who might apply for a position would be therefore protected under the cost claim that it therefore completely consistent for this court to rule that an applicant is not an employee without reference to anything else as yet having to determine the tempura limitation of whether that term includes those former and current employees that this court would need to proceed to the robinson analysis the fact that the court didn't need to refer to robinson to determine that an applicant is not an employee is hardly dispositive of whether former employees can be brought into the realm of the same statute with respect to the turn the screw driver it seems by van or by the alleged actions of the prospective employee didn't include or didn't occur during the employment agreements and then sent emails complaining about the behavior of the defendant the defendant found out and the defendant sue her for breach of not disparagement provisions at that point as a defense she raised the protections of the claim that having never been a relator having never engaged in protected conduct under the statute having never brought any of that having never brought any of this course of conduct within the realm of her employment at all the  that action complained of that not fall within the protection of the statute there are any number of protections and limitations on the retail and have a television provision protections that are available to a defendant just playing the supply of those statutory rules of construction the word discrimination just isn't title seven is found within the same of the provision that we're examining here demoted this charge demoted threatened suspended harassed or in any other manner discriminated against and the terms and conditions of employment there is a limit their terms and conditions of employment there is also an explanation they are all these are considered by congress to be act employee is entitled to relief if the employee is discharged demoted suspended threatened harassed rather than what does doesn't the word is indicate that to suggest that doctor bills and doesn't represent a class of people is just as superficial e perhaps appealing but not accurate as to suggest that matter bow down that for all time where employee is unambiguous d is right any further questions judge mckeague judge bush all right well thank you for your arguments counsel the case will be submitted