as your own as can tell from the brief we're dealing with a normally a pretty esoteric situation as far as i'm concerned in east tennessee but it appears that recently when the supreme court  the united states decided the elgin versus department of treasury case that it required a district court judges to make a detailed analysis of the federal employees actual status and the top of action which was taken against him before it determined that the civil service reform act precluded a thirteen thirty one federal question case over constitutional rights violations now we find the key in judge crashers case is that in his current status with the second amended and supplemental complaint he has no right of appeal to the mayor system protection board or to any judicial tribunal let me just jump in there  yes why didn't your client wait for the special counsel make a determination about whether to pursue this or not i mean didn't your client create a particular situation where we we wrote a letter my client wrote a letter to the the special counsel in january two thousand left when the retaliation started and objected and i asked that it be investigated and an obvious special counsel never got back to us you filed a lawsuit before they had a chance well to give us that i mean just tell me i'm wrong give me the timing that shows you were your client was really patient well ok what is the timing what's the day of the i'm just really asking judge catheters question but why not wait for the tell us why not wait for the answer from the special counsel because they didn't respond at all they didn't respond one way or the other and say they were going to consider it or they were going to consider  and they still haven't responded it and they still haven't responded is it possible that's because the lawsuit was filed they never have told us they never have told us we asked we asked them to respond to us and tell us if they were going to if they were going investigate they didn't consider the possibility of an exhaustion of a remedy in other words the way that that they were going to pierce to read that constitutional claims constitutional  in retaliation for first in perth amendment rights the exercise of those rights it takes a step up and that means you have a right to access to a court where you think that it says that one way or the other that isn't true of personal actions that you do get access to courts in non frivolous cases no sir not on prohibited personnel actions there's a lower ranking ones so it's good ministration is sad to say with everything last question i was asking since we're on the same page as i understand it with prohibited personnel actions i think we're all in agreement that's what happened here are there not settings where the office of special counsel can refer to the merits systems protection board and if it goes there and the employee loses they can appeal to the federal circuit can't can't that happen in some cases it can happen you're out of places that gives you access to a court where the access to the court has to actually be there  review and that's that that's one of the keys in this case if we will agree that if they have the special counsel it's a just we'll investigate and they referred to them as p b we would be there  now but they never got back to us we would also insist that if the office of special counsel took the case and say we're not going going with it we're not going to go there ms pretty billion on the statute you can either then we would have a constitutional issue there has to be some type of just your view however that is channeled and that's what the supreme court opinion talks about is channeling the judicial review an allergen through the m s b b and on to the federal circuit about i take it you agree that the upshot of your claim if you win is that when you have constitutional claims that are about firing you have to go through this exclusive process but if it's a lesser action per procedure personnel action you have a choice the employee has a choice of going the administrative route or filing a lawsuit you know in his court of choice well your honor yes your honor except we would say that when we have a series of escalating unconstitutional personnel actions to the point of levon month suspension with insults and turning in his days and that kind of thing is not a trivial matter and that's b s particularly nontrivial when you get fired over it that's yes but we do agree we do agree that that the personal pretty personal actions well if there are unconstitutional under the our theory we'll give you give the plaintiff iraq to go to federal court on the constitutional issues he has a right not to have judicial review of those constitutional unconstitutional actions in front of them as p b if it's an adverse action and also the right of review with federal circuit and that's where the elgin decision said this is important you get a quote review you get a court review and there you are the year of civil service befor say they recommended so they may still be that he be suspended i mean we we didn't go there voluntarily we were force there so we're doing our best we're defending the case there didn't get to bite at the apple but one was involuntary it we kept thinking they're going to do something that will get us in from them as p b but i didn't and you get that you were television got worse and worse and so there we are that's why we had the amended complaint and anything you can do to get them to i mean what you've got now is the merits raised there on the merits treat here was there anything short of the merits you could do to get mandamus them to give you some sort of a ruling before bringing the merits to federal court do you not know i know that in the  olden days the so scared administration changed his position in sales in can come in to they may speed be we've been trying to keep him out but in order to avoid a thirteen thirty one action let's bring him back in and that was at the end of the opinion so he had a remedy to the federal circuit but we don't have one yet except in front of him is p b on that one proposed expansion that had happened just so you know afterward too much i can't promise you what the office of special counsel i think is going to do but we're not going to respond to an effort to get two bites at the apple by saying you get zero you will get one at a minimum maybe two you know well that's been our concern that three years is a long time to be retaliated against him in the that's why one premise of the argument that i think we just heard was judge crafter filed a complaint with the office special counsel but they failed to act that's not actually accurate to file a complaint with the office special counsel it doesn't suffice just to s why in the world with the government not respond to him by saying listen we understand you seem to be raising a complaint here is how you do it that seems inexplicable to me well i don't i think the office of special counsel they can add t o that those regulations about how to actually file a formal complaint probably in part because just sort of getting a letter or oral notice of a complaint in an email there are a lot of ways in which a civil service employee could say i could sort of put on their radar i understand the reason for the regulations i don't understand when someone doesn't follow them why you don't refer them to the regulations so they can comply with them oh well i'm not sure why the office special council didn't respond you're going to invoke some kind of limitations period if if he loses here i'm not familiar with the with the limitations period i can't you're comfortable saying that given the letter in the absence of a response that it's fair to say that process has been a vote in vote or at least that he's got a place a place holder there i think certainly if if he then he filed an actual complaint with the office special counsel and if the defendants had some sort of limitations based offense then that would probably be precluded by the fact that he had taken steps to put it on there could be a placeholder would you can you assure us that the government would not assert the limitations defense if he goes back and tries to go through the what you believe is a statutorily appropriate process  might have a situation where one side wants to bite on the other side said zero yes in the bill right and so let me just talk briefly then about what would have happened had an actual complaint been found rather than simply want to just jump to webster i mean it seems like the hardest part of this case on the one hand what helps you is you can say not completely eliminate the option of getting to court on the other hand there's an article one article two executive branch employees discretion in the way of getting to article three so what do we do about that well in this particular case i think we can actually avoid that question because i think the plaintiff concedes that if he could have gone fact off i could just sort of call the court's tension to page two of the reply brief obviously it's the complaint that controls but i'm page two i think there's a fairly says summary of what it is that that this case is about will handle not just claims that arise directly under the statute but they will handle a constitutional claim that is extra statutory yes yes and likewise the next sentence talks about retaliation for complaining to the office of special coun we do have to worry about it i think that what triggers the heightened showing and webster our knowledge and is a statute that purports to deny any judicial relief whatsoever i would say that this is not a statute that  actually could be for some other types of employees who don't have any recourse the ministry procedures but here there is recourse to administrative procedures it's true that for for non whistleblower claims it has to start with a complaint of special counsel who has an obligation to investigate and make a determination as to whether there are reasonable grounds that a preemptive personal practice occurred and certainly the fact that they could determine that there are no reasonable grounds makes it a little bit more difficult complicated then than elgin but i don't think that's dispositive and part of the reason  are the types of things that can happen on a daily basis to any of the millions of civil service employees the definitions for what constitutes personal action extremely capacious as are the definitions for what can be prohibited and so special counsel first they'll make it and they are obligated to make an initial investigation and germination so long as they find that this claim has merit they must report it to the board and to the agency into the office of personnel management let's show some patients some yes i think under under statute the office special counsel has eight months to make its determination unless the employee agrees to do an extension so they just would be if there were a proper complaint filed you would have expected an answer not long after this lawsuit were filed absolutely if not for your state a proper complaint was not that's correct no answer would ok to penalize any further questions now we appreciate your argument i think you counsel just very briefly please a coworker understand i understand the questions and where you com never looked at they had up done with both cases under state law and we weren't you know when we when i use the word illegal i do a lot of employ miscommunication illegal in terms of the discrimination statute illegal in terms of the constitutionality as go to the mayor's protection board but it did not appear to fit our constitutional legal arguments at all so that was we just disagree on that