six and employed can appeal determinations affecting the right or interest of an individual of the united states under civil service retirement system this is a case brought under the retirement system now if there is an issue decision by the district court that it needed that it lacked jurisdiction because this was not a mixed case and isn't that correct that is precisely correct and the are of the court which the court said that because the m s p be made it determination that there was lack of subject matter jurists jury jurisdiction the district court would not look beyond that and i just preempt orally decided to transfer the arcades even though the m s p be did not a mixed case so there was no jurisdiction in the district court if if you were to assume that is the case this is a mixed case there was an allegation of there was an allegation of this discrimination on the part of the appellant in this case you have it but the vote the decision was a jurisdictional decision and even a mixed case  jurisdictional decision comes here and not the district right that that that and that is the issue that i would ask the court is not correct only if only if it is not a mixed be the congress specifically directed that mix cases come and go go to the district court and not to the federal circuit and if there is an issue as to whether the court has jurisdiction there has to be an underlying a knowledge dismayed that was never done in this case in this case the administrative georgia big murchison's protection board stated that ms mays retirement determine whether she will let me ask you this but your notes down for a moment let me ask you a simple question what is it that you want what is it that your client what is the outcome your client is seeking i'm thoroughly confused on that question help me with the outcome is that she applied for retirement as of june tenth she wants to retirement effective june tenth the recently offered the government offered you that you're either accept it or do reject  that's not self serving that this is a would never it's a fact no it is not a fact it is not yes the government that to confirm it the flows in their brief they say they offered you that date of retirement that's a fact in assume we got you the retirement date of your as it yes let's assume we got that for you that in the case would you go away happy but we do that for you she she has discrimination component this is a mixed case there was an undermining motivation the fact that the agency now wants to make her whole does not erase the fact that she suffered legally  ahead and a and a determination that the agency engaged in prohibited personnel practices under five c f or twenty twenty twenty three o two but we can't do that  appropriate trial for that let's see what the murchison's protection board has the authority to do that the gypsies cannot just engaged in misconduct and then at the end of the day i say ok we're willing to make you help paul but you can further get all all of all of all of all of the consequences that that had occurred up to up to this point in time the fundamental issue in this case is did the district court  properly transfer the case to the federal circuit where there has not been a factual record the only thing we have is representation is find the agency that have not been deemed to be rights in any way under the nature of the one which is absolutely not this is a retirement appeal this is not an adverse action appeal she had been separated from the agency all of the events that she has a alleged post date her employment is has at every argument that the defendant has made in this case where the agency has made in this case really relates to title thirty employees it's irrelevant it's logically not relevant to this case the a fact that she's a part time employee logically not relevant but is she but to come back to judge players question what does she want in june tenth retirement as a retirement yes what she wanted june tenth the time she just doesn't want to retire at all that she no that this is strictly retirement issues so it's just about the june tenth that june tenth date and also to proceed with a hearing at the murchison's protection board on the prohibited person practices aspect of the case what part of it a personal by the the the a fact that there was intentional misrepresentation and there was acting of documents which were sent to the o p m these are these are serious matters that impacted on my client's what kind of relief with that there are three if there are the relief of having redress that someone intentionally committed don't harm against her which deceitful acts in order to prejudice her rights doesn't it is no because she was not an employee she would if the the the prejudicing of her rights were her retirement plans and and she she if  if one were to look at the decision of the m s p it's totally devoid of any analysis whatsoever on on the issue the m s p administrative judge has simply stated  involuntary retirements equate to pin constructive removal so this is not a constructive remove all this is not a not first action this has nothing to do with that the m s p be could address the surely retirement issue in this case and the collateral issues are prohibited personnel practice and the age discrimination component of the case thank you and a favor the remainder of the time yes thank you is the government prepared to give her what she asked for originally which was the parity order of the record as i read it she asked for the june tenth twenty zero eight date to retire but o p for whatever strange reason said oh no you should have an earlier date and i'm not surprised that she didn't understand significantly that the even o p m didn't understand it but now she said he said th treatment says his client wants june tenth twenty away and she had i would say that he did say yes or no question and i don't care which you gives the answer i want to end up i don't actually have i don't know that offer still on the the at this point i don't now if it was offered according to the record and it was not accepted and i don't at this point i'm not sure what why she would want to do that she would think that would create an  oh we don't have a decision of the board was you have no money just a decision of the district court right no no no we do have a decision of the board for us because that the appeal from the board was transferred to us  about time in another circuit scream with valentine so that's absolutely correct but i stand corrected that let me pursue that one step further with you let's assume hypothetically that we think the bo wasn't title to yours diction under the board's authority the board it wouldn't go back to the board it would go back to the district court because now it's a mixed case is that correct i believe this court has authority to send it back to the board to remain to the board when that look at the jurisdictional twist it comes to us from the district court on the grounds that it's not a mixed case we would have been in the district court so all jurisdiction it's not a mixed case because the board said it did not have jurisdiction over her adverse action which we reversed the board on that reviews the board's findings on the merits of the age discrimination claim now there's no decision like that here there's no decision on the merits and that's what valentine says if there's no decision on the merits of a mixed case then it doesn't go to district court it comes tyrant claim which is akin to an average action of removal action under chapter seventy five a title five and now that it's being depicted as a retirement case you know either way the board has no jurisdiction retirement case the retirement issue on the retirement issue yes suman there's a retirement claim there but the involuntary retirement is akin to an adverse action which is why it's been analyzed under chapter seventy five there's there's three separate provisions that say that the board is deprived of jurisdiction to hear an adverse action coming from a title thirty eight employee there's there's this statute has a point in under thirty eight u s c seven world five which says that part time employees under title thirty eight are appointed without regard to civil service laws rules and regulation k just lost me again i thought we had just had heard you say that she if she goes on the question of retirement o p m and gets it she can take it to the or she can but then you turned around and said oh but that's the same thing as adverse action but under her appointment she doesn't to the agency and see that offer still on the table fine if it's if her if her claim is that she was forced to retire and this is akin to a removal i was removed from my position that is an adverse action claim that's a chapter seventy five claim that the board can't hear because she's been appointed under title thirty eight and i see that i'm out of time if there's any other questions we'll hear from  the table i mean you read this i mean you're representing the government that's part of the government can you tell us what we don't know whether you should have that offer on the table is that what you're telling your honor it's never been raised before and i would have to say no the offer is not on the table as an employee she could go to o p m and in fact the agency yet of joy appendix one sixty four told her in the june told her counsel in the june twenty third two thousand and eight letter if you have any questions  p m you know if she had questions about her health insurance or retirement go to o p m that's the agency that handles that and without going through o p m the board wouldn't have jurisdiction so with respect to what the court should do we respectfully request that the court  prerequisite before she could even go to district court in our recent rule twenty eight letter we had buys the court that the e o recently dismissed the age discrimination complain she has he indicated she has appealed right even if she's a title thirty eight appointee on a retirement issue to ohio pm and then from zero pm to the board she brought no that's correct she had she she does h involuntary issue because really what at the time what she wanted was to challenge her removal and not she was not able to go to the disciplinary appeals board we included in the end and them to our brief the statutory provisions that govern that only a full time nurse could go to the disciplinary appeals board challenge the removal that at the time and up until now perhaps petitioners reply brief it seemed that that was her claim she wanted to challenge the remov al because she was also complaining that because she was removed she owed the debt to the v a and again we've included in the addendum to our brief the statutory provisions govern the educational assistance program under which of that summer she was really complaining about the remove but as we said in our brief she as a title thirty eight employee under section seven four zero five which governs is that the v a is mission is to take care of its veteran patients and it needs congress decided that it needs the ability to hire and discipline in a prompt matter people who in this case were charged with mistreating a patient so title thirty eight nurses are in a unique category as doctors they have no appeal rights the board some v h a employees who are not involved at the highest level of direct patient care such as doctors and nurses do have rights to the board such as in carol another case we recently pointed out or thought as social workers things like that but a nurse the doctor appointed under title thirty eight seventy four zero five part timers seventy four a one full time does not have appeal rights the board over and ever section which is the way she characterized from the very so i mean that's what she was complaining about at the time she was removed and she wanted to appeal that and you know get out from under this debt as it turns out when she retired by reason if she did not complete her service commitment she would owe the money back whether there's nothing on the record as to whether or you know where the administrative processes are in terms of her counsel's reimburse for the education right it would not as we've argued a number of that she was removed and while there is nothing in the record specifically about the exact service commitment requirement  offered her the june tenth date she was represented by counsel they took the may day this june twenty third letter from the v a to counsel you know pretty contemporaneous in time so you didn't ask us to delay the paperwork or do anything contact o p m if you have questions and the v a never heard of him again until with respect to them so she was given every opportunity by the v a to take the june tenth date at that time if if she had one and everything that is venom and said are representations that are denied and the board at the federal circuit does not see it as a fact finder weighing evidence there has been a record that the only thing that we ha court is not in a position to consider that work play it but more importantly ms may made her retirement application dated june tenth it was signed juden tenth submitted on or after june tenth it was processed as and they thirtieth retirement there's nothing in writing from ms made a statement that she wanted to retire on may thirtieth this is a retirement issue it has nothing to do with her employment at the v a if ms mae had not had any issues at all relating to to her employment but was retirement  and had chosen to retire at some point after she left government service she could do that and if she had to retire had a retirement date of a particular time and it was processed at a different terminations or her appeal rights or her title thirty eight status or her part time or full time status this is a retirement case now as far as the issue dealing with o p m the law is that employee files it requests for review in a timely but with the wrong agency the proper agency must treat the appeal as having been time we filed as of the day it filed with the proper egypt agency and  echoed which was involuntary retirement means adverse action that's not the case that's not the case this is a retirement issue it has nothing to do with an adverse action she was no longer an employee at the time the agency committed these wrongful acts it was not an adverse action an agency can't commit an adverse action under the law under chapter thirty five of title five  mean chapter seventy five of title five of someone who was not on the agency roles it is this is just a retirement case and i would ask that the court conclude that the district court which some early transferred the case to the federal circuit erred because the a district court failed to do a fundamental assessment  facts to make a determination as to whether the m s p b was correct in its decision to dismiss the case for lack of subject matter jurisdiction on thank you thank you for your time thank you mr friedman case will be taken under advise