district court judge on two claims title seven or television claim and a whistleblower protection act claim the ninth circuit reversed the district court's findings previously on that whistleblower protection act not being protected disclosures an order of the trial court to give us a trial on those issues and proceed consistent with their instructions both the parties went back to go to trial with the understanding that we were there on a mixed case complaint and had a pretrial sat princesa how we were going to deal with the whistleblower protection act plame the plaintiff suggests that we have an advisory jury of if in the event the district judge found there was a jury trial available this government discussed that with us and then very late in the case all of a sudden the government filed a motion claiming that there was no subject matter jurisdiction under the whistleblower protection act in the first place not only had they invited the district court to rule on two previous summary judgment motions claiming they had subject matters to action and by the things under your theory of the case you can bring this next claim to be you know the will necessarily have to say i have no jurisdiction to consider the deputy pm a claim and then you can bring the non little bit longer a way of asking the question judge fisher was asking which is didn't congress say that what we want to b p a claims to be litigated is by having some agency review them and then them coming to the district court in a district court conducting  at t v and brought her claim into federal district court now they did the district court there to transfer it to the federal circuit but they still found that she was sure that there had been a very different way of appeal there's two different ways of appeal and here you're lying on the one that got you into district court not the one that gets you into the federal circuit wish you were there because you're here and so my question is still in this kind of strange to have a scheme the culture administrative exhaustion of a a claim but you can circumvent it by combining it with the title seven claim bring it to an agency that has no jurisdiction of the w p a claim then go directly to the district court that's what troubles me in the aggregate about your case address that for i think sixty day detail she was given a directive reassignment a letter of warning performance appraisal downgrading things like that and so the m s c p says we don't have to restriction over anything less than a removal so but you have to elect on the removal where you're going to go if you come with us first then you're not allowed to go to the and have these other things considered and we're not going to consider them so it's kind of a terrible system set up for employers who are welcome you know  congress are very concerned about whistleblower correct and they're giving them a particular route to end discrimination i would say but yes nobody doubts that you're discrimination claims you're exhausted that's as far says you're not required to exhaust at all well i mean that's basically what happened long case that because she had filed in the wrong forum to the court immediately like the supreme court case where she was filed on timely and then we're back at having events nothing after remarriage you told i think the euro at the outset you were going to go so they raise the the option you seem to understand the auction so that's where we're going to do what we want to go to the and then we'll take our  she had no jurisdiction you could appeal that decision to the district court but does the statute provide that you can then go up to these two court and really get the merits i don't think the plain language of the statute says that it says that you can to review when the agency simply doesn't make a decision and how could congress intend for there to be just a record yet by this opt out provision for the people who are lucky enough to suffer from the agency's delays to entertain it and as this court said in sloane when you get to a decisional what took you know took the government a long time to even begin to assert that there was a lack of pure subject matter jurisdiction it's true out o dismissal on the whistleblower protection act case that turned out to not be true that this court in the prior appeal reversed that so the government was was focused on a another threshold path and it's unfortunate that we missed the subsequent let's assume that there was no jurisdiction in the district court to us case we  i'm not sure what the government's position would be i think the one thing is clear is that you would be for the m s p be to decide whether this confluence of circumstances gives rise to some sort of equitable tolling point i'm not prepared to stand up here and say the government would say that these circumstances that give rise to equitable tolling in particular because you know she's waited this has been the district court decided it had no jurisdiction and i thought leave it was july of two thousand and fourteen just two years of not a lapse and there's been no effort to go to the emmys peavy during the so i'm not going to stand here and pretend like the government wouldn't say something about timeliness before they mistreated by i think that's what people need to decide so did they did that just really lack the subject matter jurisdiction and i think the song case is the one that's most important there which recognizes that certain timely time limits are waived will things if you don't go to the e e o c within a certain amount of time that's a level type of thing but the fundamental  presenting your claim to an administrative body that has jurisdiction to adjudicate that claim that's not a wave of thing in coming to court otherwise you don't have is the court has said in numerous questions or you don't have a  honor that's what that's why i'm trying to use explain that this is using it in the sense of being properly presented to the agency that has the authority to adjudicate the claim the one thing that is sort of clear among all of this complicated stuff as the d c circuit said in the the jurisdictional issue because of the government wins on the merits of those claims so and our reading of wells is that it doesn't analyze the jurisdictional component very mature in tell us this must be must necessarily be wrong to the extent it analyzes implicitly be wrong i think that we certainly again we didn't we didn't have a chance to petition for you here you want to be one you alternately the analysis of the other key point about that case is that there was a retaliation claim it was as i recall disability discrimination retaliation claim and the whistleblower claim was sort of appended to that and the the court said that the whistleblower protection act claim sort of failed for the same reasons as the title seven honan of the case and then it did do a jurisdictional get alice's did i'm not i'm not shying away from that i think you've got it wrong in the sense that it didn't recognize that you didn't have it judicially reviewable action that you had a component of whistleblower protection act and the  situation and it suggested that the district court should stay the case and wait for the agency essentially to do its job and create the record in decide the case sort of as a matter of and mr prince but that that case that you don't have that situation here in the sense that seventy seven o two e is a special jurisdictional provision that allows you to go to just report in a mixed case when the agency has done its job that does not in any way allow you to not present it to the agency in the first instance to allow it to do its job different context but in a in a reviewing context because they're you're talking about sort of the difference between m s p dismissals on jurisdictional grounds versus procedural grounds and in sloan this court like every other circuit to address the issue said when the m s p dismisses on jurisdictional grounds it's saying i don't have a mixed case so you can't therefore come to district court and the appeal goes to the federal circuit that remains good loft o'clockne or the d c circuit actually just had a decision ruling on that  and that is revealing at that it shows that you basically have to respect however strange it may seem and all the various routing mechanisms of the c s r right you have to respect those routing mechanisms and you do have to present your claim fundamentally to a tribunals that has the authority to adjudicate that claim and as i understood counsel conceded because i think she had to the c e o see you know doesn't have authority to to adjudicate the claim and that really in our view ends the matter to the extent that there were you know this may be viewed as sort of a trap for the unwary you know very confusing scheme that's why i think there was a lot of communication back and forth in this case we've cited the places in the pretty for the m s p be said look you it's five u s c seventy five twelve which describes the types it's five major personnel actions that are directly appealable to the m s p one of them is removal one of them is a suspension and where the fourteen days there's sort of the big corps personnel actions and so if you don't have one of those you can't go directly to the m s p you have to go through the office national council and again for the w p a there's a special set of special statutory scheme it's section twelve fourteen  prescribe if you want to challenge you want to say that you are the whistleblower protection act has been violated as with respect to sort of one of the the a lesser personnel actions you have to use the twelve fourteen mechanism go to the office of special counsel and he will eventually after case it's complicated but the one thing sort of at bottom it makes sense that at least is the w p a claim that you know can't go to the agency e o process it has to go somewhere it's reviewed on the record the cases your honors i just want to point out that the clock in our decision sets up a very simple test for what your jurisdiction is and as it was she affected by an action that was appealable to the m s p and was there alleged discrimination prohibited by a federal law that's it that's what the supreme court has said as to your jurisdiction to decide these type of mixed cases and it doesn't set up any kind of that's a separate issue whether you think she committed some kind of failure to exhaust it doesn't implicate your subject matter jurisdiction to handle this claim thank you ok thank you counsel matter submitted this time