well your argument first this morning in case sixteen three ninety nine perry versus the merit systems protection board  you mr chief justice i may please the court the parties here agreed that a federal employee has a mixed case when he alleges that he was affected by an appealable civil service action and discrimination the parties dispute whether the case ceases to be a mixed case if and when the board decides that the employee hasn't proven that he was affected by an appealable civil service action the answer to that question is no but whenever the board rejects an employee's allegations that he was affected by an appealable civil service action the board is making a substantive decision on the merits of the employee's civil service claim that point has nothing to do with the board's jurisdiction and therefore nothing to do with whether the employee has brought a mixed case reviewable in district court as opposed to the federal circuit here as in so many cases the root of the problem is the word jurisdiction whenever the board rejects an employee's allegations that he was affected by an appealable civil service action the board labels its decision jurisdictional that label is incorrect the board's conclusion that the employee's civil service claim fails on the merits doesn't retroactively strip the board of jurisdiction just as the failure of an alleged federal question on the merits doesn't retroactively strip the federal jurisdiction just as an introductory question michel and it's really probably more for the government than for you but if the government were to review this same case could potentially go from the board to the federal circuit back to the board and to the district court is there any other scheme like that is there anything that the government might point to that it's an analogous theme i don't think they'll be able to your honor and certainly that detour to the federal circuit for a decision where alternately the federal circuit can't resolve the case is unprecedented in my experience certainly a district court couldn't have the case at this point defense if the governor if you're in the district court and the court rejects the that the board let's me the court affirms the board on the civil service claim again that that's really a merits determination that the board has made i was standing its label then there would certainly be a question your honor as to whether or not the discrimination case has been exhausted but in their exit in the cabinet take the position that it hasn't been  the m s p be in the first instance was exhaustion but if not your honor even under the under the government's own scenario district courts deal with an exhausted claims every day and have mechanisms for dealing with that the district court could hold the case in abeyance for instance and send the case and require the employee to exhaust in the agency but that doesn't mean that the case doesn't belong in the district court in the first place that's really kind of a remedial point once you wind up in that's one of the problems with their argument your honor because under under that point one of their main arguments is that the scheme is set up to create a uniform system of uniform jurisprudence of civil service appeal ability decisions but that argument doesn't work on its face precisely because as your honor just stated you don't have to go the m s p route to do this and i think i think you're right that it's a problem just can't figure out who it's a problem for the  mean if you're concerned about the consequences of what the emmis p b might do you would skip it altogether and go to the district court right away right yes but you certainly don't get out of your li your complaint with the agency yes and you can go either to the district court order the m s p be correct you can you know when you before you can do that you have to exhaust right no if you did the filing your complaint in the agency e o is the exhaustion mechanism in the agency the alternative exhaustion mechanism is to go to the m s p b so you have the two paths there the point that i was making earlier on or just to be clear is that you can have a situation where you go straight from exhausting in the agency your mixed case so the mixed case also can be exhausted in the agency e o that it is and in that determination this is seventy seven zero two eight to the eat oh the agency e o also has to make a determination under eight to one about the board's jurisdiction so there has to be an appeal ability determination made by the agency e o but we know that the agency in rio decisions always go straight to district court they never go to the federal circuit so it can't possibly be that there is this desire for a uniformity of a lot of appeal ability in the federal circuit if one of the two avenues the agency eleven you never sends you near the federal circuit if you had chosen to go directly to the district court if you could by passed the merit system protection board would you be able to raise in the district court the question whether the alleged removal was proper under seven seventy five thirteen whether it was would promote the efficiency of the service or would you have at that point only the discrimination claim where you are just to be clear used in any of these mixed cases you have to your civil service claims that you can bring in district court absolutely that's the mechanism i was government says not but it doesn't cite anything when it is not and we point out a footnote i reply brief that we found that a very surprising assertion in the government's brief because that's clearly wrong you don't lose your civil service claim that the statute very clearly seventy seven zero two eight two sets forth the agency e o as an alternative to the m s p b for exhausting mixed claims and so i don't know where that idea came up but we firmly disagree with that mr lantos that raises a question i have for you seems to me that both sides agree on the premise that mixed cases can go to the district court so the district court can adjudicate some civil service disputes are right where in the statute is that provided a look at seven seven zero three b two and it speaks of cases of discrimination filed under federal discrimination laws go to district court that's right and then i look at the standards of review and the standard of review for the federal circuit talks about normal agency a p a type review and seek right which makes sense for civil service claims right and the only standard of you mention for district courts is de novo right which makes sense for discrimination claims but not for civil service claims of my tag along in district court right so but by what authority does a district court ever have the power to hear a civil service claim just just to start with the latter part of your question your honor the statu as is often the case is not the most carefully crafted there is no question in fact the direct holding of this court in kleckner is that mixed cases go to the m s people putting aside collector right looking at the plain language of the right  discrimination under federal discrimination statutes are cases of discrimination under federal discrimination statue race and not civil service disputes they call them that you are absolutely right the case it calls them that in the statute but if you look then it's a title of seventy seven o two your honor it has i'm looking for here it's called actions involving discrimination so seventy seven zero three which i think is what you were referring to the seventy to  two shall be filed under and what that is really saying is you file those cases as a standalone complaint in other words you are not seeking review of agency action at that point when you have one of these cases of discrimination and again when you go to the title of seventy seven o two it's called actions involving discrimination would have been but while i'm sorry for taking up so much time i apologize my last question and that why does subject to mean it has to meet the standards of seven seven o two rather than it's a claim that subject to the test of seven seven o two well it is i guess it also sends you to the same place though that you always i mean i think the point is that when you have a discrimination claim if you wind up in district court i think the text of the statute seventy seven zero three v two sends you to seventy seven zero to a one it's a seven zero two and those are the actions of all the discrimination but it's always only actions of discrimination filed under federal discrimination statutes what we're talking rate because you have a claim on that but we're talking about the such cases such claims within the contour of a mixed case which is also a case  involves a civil service claim that it seems to me there could have been two ways to set up this regime you could have had a regime where all the civil service claims go to the federal circuit and all the discrimination cases go straight to district court but the congress decided a question about the language of seventy seven o two a one a and b which is the provision that specifies the jurisdiction of the m s the action so what should i read into the different language used in those provisions the second one the certainly concerns allegations but it doesn't say alleges that he has been affected by it says has been maybe affected in fact affected by your honor you are exactly right the government says that you should draw a negative inference from the absence of the word alleges in a and you know i think that in truth is their strongest textual argument that that's what's wrong with that what's wrong with that is as this court reiterated as recently as s w general last month whenever you're talking about this kind of negative implication it has to be a sensible one and you have to ensure as a court that congress really wanted to say no to the other one and i think here the text and structure of the statute tell us that that the a has to refer to allegations as we said in our brief there's another provision seventy five thirteen d that says and  five thirteen d says an employee against whom an action is taken to the section is entitled to appeal to the board that again has to be an allegation and and that is of course the way our law generally works as we pointed out in our brief the federal question statute doesn't say alleges it just says if you have a federal question our proposition is very much that congress legislate against the backdrop of what i call the bell versus hood principle that when that  jurisdiction of an adjudicatory body is triggered by allegations and the ultimate failure of those allegations on the merits doesn't retroactively strip that body of jurisdiction and the negative inference to which you alluded to which the government makes point is not enough to say that congressman to throw that all out the window and to create a scheme where it sends you going back to justice kennedy's first question on this kind of needless frolic and detour to the federal in this case you do have discrimination claim is fully protected even if you have to go to the to the federal circuit on the civil service claim you can still go the discrimination claim absolutely your honor that is true but that is not a reason to say that we should take a detour to the federal circuit you know it is true the government is correct that they are not saying we lose everybody agrees that we have the ultimate right we will ultimately wind up in district court on the discrimination claims so the real question is did congress create a regime where on the way to the district court you have to go way up to the federal circuit to  appeal ability question and the answer to that we think in light of the text is no you're being generous to the government mr land out the government says that it's only by regulation that they will toll the discrimination claim and that they could get rid of that regulation tomorrow and then the discrimination claim will not be told and you could run out of time on it isn't that right i think even you are being generous to the government justice kagan because i think they say that some of these regulations that don't even necessarily apply and they even invoke equitable tolling in one of the footnotes to their brief because i think some of the regulations in refer to seventy seven o two and their whole theory says that seventy seven o two never comes into play at all if the m s p be ultimately concludes that the civil service action fails on the merits if you don't have the appealable civil service action against mr landed does that not suggest that this detour to the federal circuit may not be what's prescribed by the statute and that again bifurcation should take place and discrimination claim should go to the district court in the first instance rather than hang around waiting in the federal circuit hopefully hopefully with a regulation that might or might not claims together now it's that that is one of the my questions is where oh well i think the question is if you look at seventy seven zero three b one it says it's called and said these are the three is judicial review of decisions of the m s p b and then it says except as provided in sub paragraph b and spare a graft two of the subsection they go to the federal circuit so the back ground rule is that all appeals from m s p be decisions go to the federal circuit but that the exception is what's important here and the exception is cases of discrimination so that suggesting that you have cases of discrimination there before the m s p cases of discrimination subject to all this are cases that can still be going going subject to the provisions of section seventy seven zero two of this title shall be filed under section seven seventeen c right right but but that so you have to look what is a case of discrimination subject to the provisions of section seventy seven zero two of this title you also have to ask what are cases of discrimination filed under seven seventeen right correct and those are classic discrimination claims that are filed in federal district court correct correct and so that i am i think i am maybe emphatically agreeing with you and i hope so ok good hope so too not really sure but i think i am i think again i think everybody agrees that when you have a case discrimination it has to go to wind up in district court i think you know the question here really is that the is where's the detour to the federal circuit that you also anticipate and seem to agree can't happen no we don't and i'm sorry and what you say more questions whether it's told well is sitting in the federals or no no i believe i was asked a question whether or not the tolling was enough to the government's position basically is that the tolling is enough to save that you shouldn't worry about going to the federal circuit as a discrimination claim will be told our point is ok that that some problem but you shouldn't have to go to the federal circuit at all we are not the ones pushing the tolling by any means i'm sorry if i was not clear on that that's the government's theory because the government instead of having a case what they want to do is have to disinvite the claims that are somehow floating around together and they concede that the federal circuit can only address the civil service claim but our point is this is an individual claims these are cases these are mixed cases that congress has joined and they are trying to run them asunder and to have these disembodied things going to separate places and that i think is the heart of it here i guess i think that the critical question the critical point here is that the word jurisdiction is being misused i don't think anybody would disagree that if the if there weren't even allegations on the face of the comply isn't that that would be a jerk that would give rise to a serious civil civil service action that is a jurisdictional problem i think the problem here is that the board is making it the classic kind of mistake that this court has for twenty years been trying to correct of the prophet use of the word jurisdiction and it is saying when we decide on the merits of for instance in this case they decided the settlement here was voluntary so you gave up all your claims that is a substantive determination on the merits the board is labeling that determination jurisdictional that's what's getting us into this whole mess that the board is calling these decisions that are that this situation involving a settlement agreement is not actually jurisdictional we're saying that any ruling where the board says we don't tap power to hear this case are saying that restriction it is not when the board decides if you allow as long as the complainant alleges something that is one of the serious civil service actions if that if the board were genocide let's let's go to the suspension and look i have a suspension of a certain number of fourteen days your honor all right and let's assume that a board doesn't have the power to hear something that's i'm not generally considered in there to see i think the board did have the power to do that i think it is especially here absolutely right every court has to every entity has the power to determine their own jurisdiction so there is a circular problem to the sword and your point is that you start with your honor is particularly powerful here in a case of constructive discharge where there is a complete and total over lap between the merits of his claims and what they're calling a jurisdictional determination because they're saying hey you give up all your claims in a settlement agreement this is all voluntary action that is the whole ball of wax both for his civil service claims and then what we would ask the court let's assume you went to the agency ok and you then went to back to the district court ok what happens to the board's finding that the settlement was  because it doesn't refer to the district court's janitor view of the civil service claim but of course just to be clear that is true for cases where mixed cases involve substantive civil service issues and procedural civil service issues and everybody agrees that those go to district court so we're not asking this court to break any new ground into you know just continue to make it up well no i'm just that your honor i guess i think the fact that it's not there just doesn't doesn't mean that it's not supposed to because the statutory scheme just because it's not there doesn't mean it shouldn't be there i agree what you get but it's not there it's not there but in the quiet but if you again you face a textual imperative cutting both ways because the text clearly does send some of the send these mixed cases to district court in cases involving discrimination claims so the question then is what standard of review should apply to the civil service component of the mixed case when it arrives in just record i believe that was justice sotomayor is question and the answer to that is all the courts that have addressed the issue have held that it is the same arbitrary and capricious standard of review that applies to agency action generally and at the federal circuit would apply to this because you are reviewing agency action with fact the district court and you're just exhausting on your way there i see that my light is on and i'd like to reserve the balance of my time  thank you mr fletcher thank you mr chief justice and may please the court the federal circuit generally has exclusive jurisdiction to review the m s p these decisions but section seventy seven of three b two carves out an exception that sends mixed cases to the district court that exception doesn't apply here because the board concluded the petitioner does not have a mixed case and then dismissed without deciding anything else as a result petitioner unlike the plaintiff in clocker is not seeking to bring a mixed case into the federal courts in well that's what the the board says that leader know that right is in it for the district court to make exactly that terminations well i think what the board said is that he doesn't have a mixed case and that has shaped what he's asking the courts to decide so he is not seeking further processing on his mixed case he wants a federal court either the district or the federal certainly still thinks he has civil service claims in addition to discrimination claims and the only thing he wants the court to do i think this is clearest on page eighteen of the reply brief he wants whichever court is reviewing court or the district court or the federal circuit to decide to reverse the board's decision that he didn't suffer an appealable action and send the matter back down to the board for further proceedings on both his discrimination claims and his civil service well that's  said that it was not reviewing the merits of his civil service claims but he still thinks he has civil service claims and discrimination claims and so he's rejecting the idea that the board you know the board has said it's not a mixed case but i don't see that mr fletcher as addressed by this statutory language that you talk about you know you talk about seventy seven o two and as justice alito said you said a says has been affected and b says alleges that the basis for the action was discrimination but also seventy seven o two does it defines a category of cases these mixed cases and that's what defines them that it that the employee has been affected by a certain kind of action and makes a certain kind of allegation and it says well the board decides that and then seventy seven zero three says that afterwards it goes to the district court but what is left completely unaddressed in this is the question of who decides whether this is a mixed case as defined by seventy seven zero two seventy seven zero two doesn't tell you that it's a it's a so so where in the statute do you think it tells you who decides whether something is a mixed case as defined by seventy seven o two or for purposes that question cannot come up at different points the question for which it's relevant here is the question does this appeal go to the federal circuit or does it go to the district court and for that purposes i think there are basically three options for who decides one option that no one is advocating and i'm just asking you know you know you point to this language this language doesn't get you there i'm just asking whether you have other language to point to that suggests that the who decides question ought to be in the federal circuit but let me first take a run at you on this language because i think what it does say as justice alito pointed out is that the employee's allegation is sufficient as to the discrimination content obviously not just the other no it obviously makes a distinction between allegations and and and being by an action but only all that this provision does is it defines what a mixed case is and says that the merit systems protection board will decide that mixed case and the definition of a mixed case has one element which is an actual thing and another element which is an allegation yes but this is only the statement that the board will address that cases it doesn't say anything about what happens if there is a dispute as to whether there is a mixed case who gets to decide that question and the only point i'm trying to make is that i think it may not answer that question definitively in your view but i think the fact it cuts against my friends the answer which is that we should take the employees word for it if the employee alleges he has a mixed case it ought to be treated as such for purposes of these questions because the statute makes an allegation sufficient only as to one of two elements that may not be that in a way that's the way the system works generally i mean there are all sorts of statutory programs where there are prerequisites to proceeding you know the clean water act you know you can only proceed if the company is discharging water into navigable one but the system always works by the fact has to start with an allegation that's the one provision does say alleges and the other doesn't but it's hard to see how this system doesn't turn on preexisting facts the way if you answer faxes you have an allegation then you have a response and all that so i don't think the fact that he did not use the word alleges can really be that significant well i think our system doesn't work that if you have a project provision that a tribunals court an agency whatever can hear a certain kind of case by necessity when someone comes in and claims to have that sort of case you have to take their word for good least insofar as you have to hold pro se that's really if we have had i won't say difficulty but we've had a lot of cases trying to decide whether something is jurisdictional or procedural and it's not always an easy question to suggest that people you know filing these things pro will be able to understand well that's jurisdictional but it may actually be jurisdictional in the sense of being a claims process and rule as opposed to subsume jurisdiction i i think you're putting a huge burden on the system and so let me say a couple of things about that the first is that this is the sort of jurisdiction in the abstract our rule turns on the language that this court focused on and clocker which says you have a mixed case if you've been subject to the sort of action that you can appeal to the board that's all we mean by jurisdictional and the second point i take your point that many of the employees  through this process are per se and that's why the process takes steps to protect their rights at the end of every board decision is an advisory about appeal rights and when as in this case the board concludes that it doesn't have a jurisdiction because the action want to be able it advises the employee their right to seek review is in the federal circuit so i take the point that this is a rule that employees may have to handle on their own but the system helps them through that the whole point of the scheme generally and we've said this and it appears on the face of the statute is to make sure that the doesn't have to claim split and so we've said when the board dismisses your claim on the merits you can take it to the district court and we've said that when it dismisses your case on procedure you can take it to the district court you can do everything in the district court you don't have to split it up do one thing in the federal circuit and one thing in the district court and now for this one category of thing which you call a jurisdictional mr landau says in this case it looks an awful lot like a merits determination but anyway for this one category of thing we're going to treat it differently we're going to insist that you split your claims and and not bring the discrimination claim in the federal circuit because you can't bring  there but instead you have to go to the federal circuit on your c s r a claim just is ok i disagree that this is claim spluttering we are not taking just part of the case he's not taking just the civil service claims to the federal circuit again i point to reply brief page eighteen where he explains that if the reviewing court the federal circuit or the district court concludes that the board was wrong on the appeal ability question both parts of the case are going to go back down to the board for further processing so this isn't the deal if you claim it's temporary claim splitting it's you know you have to put your discrimination claim on the back burner and proceed with respect only to your civil service claim and decide you know whether the board can can review that or not right and that is a kind of claim split and i mean you can say eventually it will all get into the same place but eventually it can be a long time and as i said before your discrimination claim may have lapsed by then and you don't guarantee that it will survive and so that seems to me something which  is you know really cuts against the way the scheme works in the vast majority of cases and the way we have said it should but i think the only thing that none of that is unique to our rule i think even under petitioners will you're going to have a threshold dispute about was this an action appealable to the board or partitions will that threshold dispute there's going to be a detour to the district court to decide that threshold dispute and if the district court concludes that the employee did not have an appealable action then the employee is going to need some sort totally rule or something to forgive the missing of regulatory deadlines because that employee has not properly exhausted a pure discrimination claim all right i think i ask you that question i was following your argument in your prefix of i got to footnote three on you know which one i'm referring i do so there is you're saying that the regulations that provide essentially for trolling but that there's no statutory basis for them are you saying or at least not not seventy seven zero two yes are you saying that there isn't another one or that this regulation is open to challenge and if it is then nothing gets told no certainly not i think the general will of the yossi has general rule making authority for the processing federal employment discrimination claims including mixed cases through the administrative process it's a general rule even apart from the particular one that we're relying on here is that deadlines are subject to tolling and waiver and other sorts of provisions and so i think even apart from the specific authority in seventy seventy two f there be room for tolling rule like this one i think the ninth circuit's decision in sloan versus west which is one of the early precaution cases that looked at this question concluded that this sort of tolling would be required as a matter of equitable tolling so again on the tolling issue i think either side is going to need some sort of tolling rule and i think there's plenty of room to make that sort of tolling will once it gets sorted out which form the employer obviously that is an odd it is odd that the only category of cases that you say has to go through the predicate circuit through the m s p be the cases in which you missed p b thinks they don't have jurisdiction well you have two cases they were always kind to gether and the one they say no no that's got to go to the b b and i mean that's got to go to the federal circuit because we need uniformity or cases where they don't think there is a claim under the civil service act i actually think i understand that that may seem a lot from you from one angle i actually think it makes a lot of sense when you think about why congress made the exception for mixed cases to begin with and generally all board decisions go to the federal circuit because we want uniformity we want the efficiency of just a single layer of judicial review we carve out mixed cases because those cases include claims of discrimination employees have a right to trial de novo on their discrimination claims and obviously can't get that in the federal circuit but here and again i go back to the nature of the question that the employee presenting to the court it is not a discrimination claim on which there will be a trial don't know if it's just a discrete question is this an appealable action everyone agrees that that question is just a matter of federal civil service law of the sort that the federal circuit answers every day in non mixed cases don't feel a gift to be jewish picture i think this is most clearly laid out on page four a the petition appendix in the d c circuit opinion it explains that the board's general view which has been upheld by the federal circuit is that a voluntarily accepted action is not an adverse action that's subject to the board's jurisdiction so here taken the resignation petition or facially resigned or retired his employment the board only has jurisdiction over a removal and so the board has said ordinarily obviously we wouldn't have jurisdiction over retirement but if you can show that you were coerced into retiring we'll treat that like constructive removal within our authority here we'll treat that like an appealable action and i think the the wall that's at issue here and i just want to point out even if you don't agree with me on this that's not really the question presented in this case the case comes to the court on the premise that this was decided on appeal go to grounds and even if you disagree that this particular ground is in fact an appeal ability ground lots of them are lots of them maybe the cases like justice sotomayor pointed out where there's a question about was this a suspension of more than fourteen days or not or is this an employee who's intitled to civil service protections or not said mr fletcher of the one thing about this case that seems perfectly clear to me is that no body who is not a lawyer and no ordinary lawyer could read these statutes and figure out what they are supposed to do i mean this isn't this isn't your fault now will decide this case and that will make things clear there still will be all sorts of questions is tha something this can something be done about this this is a case that's about the bottom not very much substantively right it don't matter which side wins mr perry will in the end get a decision if he wants it in the district court on both of the questions yes so what can be done to clear up this is unbelievably complicated and i'm not going to fight your point that this is a complicated statutory scheme or your point that it's going to remain so whatever the court does with it who wrote this statute somebody who takes pleasure out of pulling the wings off flies but i think congress is trying to balance mash together two systems the civil services some and the and the and the disc federal discrimination laws and it will probably the way this is the way you end up though is a situation where people believe the m s p has jurisdiction because uniformity is desirable in a particular area even though it doesn't have it can't enforce human to uniformity as a matter of substance and we held in kleckner you can't enforce uniformity as a matter of procedural laws and you made these arguments in kleckner and when lost on procedure now you're saying well jurisdiction is different so we can make the same arguments there in terms of accessibility of the statute and simplicity it would seem wiser to prevent that type of you know splitting the order well i don't think the me we size this voluntary settlement issue what else is jurisdiction what else besides something that doesn't match seventy five twelve b for a little suspension what what what would i tell the practicing bar ok now what the board labels as jurisdictional really counts is jurisdiction i think you would tell them that it's yoked to the text that this focused on and click now which section seventy seven o two a one which says that to be a mixed case you have to been affected by an action that you can appeal to the board and in elgin this court explained it that the actions that you can appeal to the board generally are determined by the kind of action that you've suffered a removal of suspension and so cases having to do with whether you're a defined employee or not that's right back in seventy five twelve only applies to certain categories of employee i think that gets to the point of why it is the congress might have wanted to keep these questions in the federal circuit and this gets back to your question mr chief justice it's absolutely right that in some cases congress sacrifice that interest in uniformity because it wanted to pursue other values because it wanted to protect employees rights to trial the no and that the point that i want to get to here is that this particular type of disputed issue here an appeal ability dispute doesn't implicate those reasons that caused congress to sacrifice uniformity in other contexts to feel good when we're talking about folks knowing where to go and making it easier on them can you help me with the same question i had for mr landau which is b to as i read it talks about cases of discrimination filed under federal discrimination laws go to district court and everything else goes to the federal circuit now that would be a nice clean rule right it would use would know that their civil service disputes go to the federal circuit it would be as commission look claims go to district court we have to add a lot of words to the statute on standards of review for the district court if they're going to be reviewing administrative actions we have to ignore the standard review that is prescribed by the statute for the district court de novo when it comes to certain claims come before and we have to worry about all this equitable tolling as well and a regulation that may or may not say what the government says it says would be a lot easier if we just followed  the plain text of the statute what am i missing so i think it might be a simpler system but it would be a system that would require the sort of claims living that justice kagan referred to earlier and in a much more serious way i think also i agree with you the statute doesn't express the provide for districts to decide civil service claims i think it's fairly read it's not elegantly drafted by think it's fairly read to allow that let me give you a couple reasons let me give you a couple reasons there yes not reasons where in the language absolutely so we start with a general rule that says you in section seventy seven zero three b one that says except as provided in paragraph to a petition to review a final order a final decision of the board shall be from the federal circuit the provision that we've been talking about that says you can bring a discrimination case in district court is an exception to that rule which suggests to me that what you're doing is seeking a review of the board's decision which of course included civil service can doesn't say that it says except clauses cases of discrimination filed under federal discrimination laws that's what it says but let me let me just quote the language it says cases of discrimination subject to the provisions of section seventy seven zero two of this title shall be filed under the applicable into discrimination laws the case of discrimination subject to seventy seven o two is defined as a mixed case that includes both discrimination and other components there in sect seventy seven zero two itself where it says a case of discrimination subject to that just raises the question what subject to me right and you're equating subject to with meeting the test of but subject to can also mean subject to it can be tested under not that it meets the test but it can be tested under right that's often how congress uses that phrase i understand i may not be be grasping that sense i understand that you might use it to say this is true subject to some other provision that might qualify right i don't think that's how congress you're not qualified not that it does qualify i guess it's used in that sense right i think i'm not sure that it i can agree with that you just give me a good example then i think maybe i'm misunderstanding the question i agree sometimes congress says the rule is you go to district court subject to in this case you can go to some other tribe you call it will show it's describing an exception i think that's that's not what it's doing here here it's using that as a description it's not he's already for that proposition clocker which i think says you know hundred three which is sort of the first that decided this and every court that i'm aware of since then has followed it but this would be a kind of revolution i mean in to the extent that you can have a revolution in this kind of case but it would be a big change ye when it goes to the district court first you could go to the district court at the beginning you can treat it as discrimination but then you can't bring your civil service or so now we want to bring both us and we go to the m p s b then by the way if they decide against us we go right through this record remember that up now in the two cases i said to remember when the district court has them does the district court decide both the discrimination issue and does it review the civil service issue so in our view the answer to that question asked to be yes otherwise you're going to bounce bounce bounce i don't think that's right i think those are just those are provisions that you've described that give the employees options to short circuit the administrative process and don't know i want to know you're not following me i think i'm agreeing with you i'm saying your answer has to be right because otherwise you would get in the at the civil service part i mean the discrimination part done then you'd be back over at the board again and it would never end and this poor employee who is already hungry and thirsty and been going on for quite a while we just have another loop round to go am i right i think so let me just articulated to make sure we're on the same page yes our view and this is not something that not all the courts of appeals have agreed but our view is that if an employee invokes the provisions of section seventy seven o two doesn't wait for a final decision and instead go straight to court yes what he can bring to court are his discrimination claims he's giving up his it says that infant employee invokes one of these hundred twenty day rules he's entitled to file a civil action to the exam extent and in the same manner as provided in the listed and i'm so just as a matter of pure simplicity if we could get there why if they are going to decide in the district court i guess under ordinary law a set of standards they're going to decide in the district court the civil service claims as well and you will have non uniformity in a whole bunch of cases where the m p s be decided no why not bring this one into because this one into we give you the added uniform there's no more disunity for many then there is in any of the other cases and all that you have here all just what he said on jurisdiction this case is really about is whether there was a voluntary departure from the from the civil service or whether it was really fired but i think justice by taking this sort of decision and this appeal ability determination is going to take and introduce just uniformity into a whole nother category of issues like those i was discussing just a sort of my or and it's going to do it for no good reason because those are issues that are going to be there pure civil service issues are going to be adjudicated on the record before the s p v with no to notify i think that it isn't no good reason the reason is you're cutting out the extra loop the very reason that you have the district court make the ad law a decision in the cases where the m p s be decided against the employee so the reasoning is the same it is it is i grant you that much more but that much more is not a distinction of principle but i think it is just aspire when the must be has decided the case it's decided the civil service claims it's decided the discrimination claims it makes sense to say some of those are going to have to be decided in district court to take all of them to district court even though there's some loss of uniformity it doesn't make sense where as here you have this threshold appeal ability question that comes up before the s p v addresses the merits of either of the questions and some court is going to have to decide that question some court is going to have to be a detour to some court that threshold of the administrative process to decide if the m s p was right not to let it proceed further  it makes a lot more sense to send that to the federal circuit which decides those questions all the time and which can do it in one layer of judicial review because otherwise i'm sorry i want to go i was just going to finish out the thought that under my friend's view at that threshold point you go to the district court and if the employee doesn't like what the district court does or the government doesn't like what the district court does you potentially have another layer of review in the regional circuit before you can even get to a conclusion about whether or not this was a matter that was properly before the s p p in our view it goes to the court that has a body of law that decides this all the time and it can put it on the right track administrative leave much faster there has to be a detour either way i understand there's a detour the m s p to the federal circuit under your view yes but where's the other detour it's not the other route was straight to the district court it's straight to the district  keep in mind and again this is page eighteen of petitioners reply brief what he's asking the district court to do he's saying district court please review the s p v his decision that i didn't suffer an appealable action and reverse it and send it back to the m s p for further proceed you think he has to ask that suppose something else suppose he said i'd like the district court just to decide this could he do that i don't think he could i certainly don't think he could afford the civil service claims because those are claims that have to be decided by the board in the first instance they're subject to cherry type standard administrative review where there are times where the district court does it without the board's doing that first right when the board when the time period lapses not in our view but that's the contested issue where some some courts do allow that to happen but it's been our view it ought not happen and i think in addition you know to attempt to make a point i think my friend has suggested that some of the efficiency from his view actually happens when the employee is wrong when you go to the district court and the district court says no the m s p was correct this is not an appeal action what you have is a pure discrimination case and i take my for what happens if he went to the district court i don't hear about the board deciding this issue voluntary or not voluntary i just want to pursue the person the discrimination claim i think i that's what he if that's what he wants he should not seek review of the board's decision at all because the regulation that we talked about earlier sixteen fourteen point three zero to be positions him if he just acquiesces in the board's decision to go exhaust his administrator has a discrimination claim through the ordinary administrative process through the agency e o and then through the see if he wants it and then he can go straight to district court so if that's what he wants he doesn't have to do this at all but we're here because what he wants is him s p v review of his claims so under your theory the problem is that if you if you have to go your route it's the discrimination claim that gets all mucked up because it may have you may need to told the complaints the exhaustion issue may be complicated so it's a problem either way right i think though i think he has our problem too we solve the problem that you have with his but he has no other tolling allowing them to start over again yet b s because but you need that too even if you send these cases to the district court because if the district court agrees with the m s p and says you didn't have an appealable action first of all the government going to have a very strong argument that he has an exhausted his administrative remedies because he hasn't and second of all in those circumstances the employee may not want to proceed in district court very often federal employees who have discrimination claims want to get review before an administrative body like m s p or the sea because it's easier to avail myself of my administrative remedies and what our will does is get you a quick decision from the federal circuit on that question that puts the employees in a position to go back and make that election do i want to continue to pursue administrative remedies through the see or do i want to go ahead and get a final decision from the agency and proceed directly to district court up here discrimination claim that's the circumstance he would have been in if he had just accepted the p b s decision that's what the regulations provide if he hadn't appealed and we think that's the same position that he ought to be and if he goes to a court and seeks review but is unsuccessful we actually think it's sort of odd to let an employee who seeks review of the miss p b s decision and loses somehow skip some steps of the administrative process or end up in a different position than he would have been in if you just accepted the miss p b s decision in the first place thank you thank you counsel mr landau four minutes thank you your honor just very briefly i'd like to make two points first our interpretation of the statute is not just our interpretation of statute it's actually the relevant agencies interpretation of statute as well and i omitted in my opening presentation to refer to the regulations both from the e e o c and from the m s p that actually say that the interpret the statute just the way we do that the jurisdiction over a mix question turns on the allegations and not just the outcome of the of the serious civil service action for the regulation it's twenty nine c f r sixteen point sixteen fourteen point three zero two eight two and from the m s p be perspective it's five c f r twelve zero one point one five one a one so this is the government the agencies in themselves actually interpret the statute just exactly the way we do the second point i'd like to make is that that there were some allusion to this in the questioning of my friend the  procedural so substantive jurisdictional lines are among the most elusive in the law and asking pro se litigants to make these decisions is a fool's  drowning for years in cases regarding whether or not a particular has to be action was in fact properly characterized as procedural substantive or jurisdictional i think our view has the simplicity of saying if you made the allegations regardless of a serious civil service action regardless of whether or not the agency accept those allegations you have a mixed case that goes to the district court just like procedural dismissals and just like substantive issues and the district courts handle that's a simple regime for agents for affected government employees and agencies and courts to handle and finally as this court said actually in announcing kleckner the government's position in this case is just too complicated to be right thank you thank you council cases submit