Next case will be 093104. Rachel, Rachel, Rachel, or Grocco, the military system protection board. Mr. Pursure, come on. Good morning, Your Honor. Just for the record, it's a racial battle. Your Honor, this case is about a pro-say litigant. The MSPB clearly he did not, had he had to do it over, he would have submitted what he had filed with the Office of Special Counsel. And the fact is he didn't, and we can't go back and change that. The question is, under the standards that this court and the MSPB have set, did the judge here have any obligation to do it? To, as it says in the Kaiser verses, the Kaiser case, which is cited on page 11 of our brief, a judge has a particular obligation, which respects jurisdiction, to advise the pro-say of hellentess to what exactly, where he has the burden of proof, to establish the jurisdiction. It didn't do that
. I know the page 30 of the Joint Epinix in his order telling what to produce. He was quite explicitly, he must state the following. The specific disclosures that you made, to whom it was made, when it was made. What more specific, do you want these things they had to tell it? Well, that's a very fair question. I think that's what happened if you read the appellant response to the judge on the 13th of March. First, he tells the judge that he believes he only had four days to respond. That's the page 40 of the Joint Epinix. And then he gives an indication here that he tells the judge a long story about how he had sent this into the Dallas office, the clerk there had assured him that these materials were delivered to the judge. He later says he didn't understand what the term inter-alea meant, and that the judge later made himself unavailable for his phone calls. So I think that all of those factors together, how difficult would it have been for the judge to say, I got your submission
. We need the full submission that you submitted, even though you submitted that to the office already. That's not good enough. So you understand this? I understand your argument that when he was told to produce, and there was also additional specific things on the next page, he was told to produce. And when he responded to that saying, well, I sent all of that down to the other office and I assume they transferred it to you. And then he said, you say at that point, the administrative judge should have said, that's not good enough. I want to know explicitly the things that I said to you. And I want you to tell me now to whom to make these disclosures. What was a, what reason do you have to think they led to you not being hired and so on? That's what you'd say. Right. It was some obligate
. Right. What do you find that obligation on the part of the administrative judge to tell every pro-Sé litigant exactly what evidence to submit? I mean, he was told to submit certain evidence and you agree I take it, but he didn't submit it. Right. Right. I do agree to that. There's a case that we've cited in our reply brief. The case of Lewis versus the US Marine Corps, three MSPR, three 28 on page 330, where the initial decision is issued without adhering. The administrative judge should have an interest of justice, monitor the submissions closely and request additional evidence where appropriate. In that case, would I to the merits rather than jurisdiction? I don't know, but the case that I had cited before, the Kaiser case clearly that that was with respect to jurisdiction. I don't know so much that it makes a difference because what the courts are trying to do, you know, and there's a number of other cases where this is emphasized
. Is that, for example, in the swan case versus office of personnel management, 93 MSPR 622, that even though the petitioner there didn't provide his exhaustion letter at the appropriate time where the document can be easily obtained, it's appropriate to remain the appeal for further supplementation of the record. And the one case that my adversary cites, which I've looked at, the Mendosa case at this level, I think is very distinguishable because there in the case there was a delayed filing of the original claiming. There was a statute, there was a CFR which said you have 25 days to appeal us. And there the appellate did not appeal it on time. So the question is, why didn't you appeal it on time? And she did not answer the judge at all. She just stated that she's entitled to the annuity case. And there the panel ruled for the federal circuit panel ruled for the appellate. And this is a little reversed by non-bank. There's a vigorous dissent in that case that basically said that this was a confusing process for her and had the facts, you know, been a little different as they are in this case. Here, the judge purposely didn't make himself available to take the sky's phone calls
. So I think that that is when the judge doesn't do that, he does an execute his duty and he provides an explanation. How many phone calls does the record show how many phone calls he made to the judge? I don't believe so. I don't think it does. But I think he says in his appeal to the full board that the judge did not take his phone calls. That's I think enough to the judge with the judge should have done this. He should have done that. So I think that's the basic point here that I'm making. Well, why should the judge accept the telephone call on what basis? That is prosaic. There's a certain, I would say this, your honor. There is a certain back and forth in as we see in even in these arguments that is not captured in a letter
. But that's somebody writes a letter and you should do this. I respond back and that the back and forth is missing in a non-world type of indication. And I think that in non-world communication, I think this is what the courts are trying to say that we want to see these cases resolved on the merits. And last somebody is just willfully ignoring the judge not responding to orders clearly in this case. He didn't respond to the order, did he? He explained to the judge that he thought the judge already had that. He saw this as a redundancy. So the judge could have, it's not like he's saying, I think this is crazy. I think you're out to once judge. I'm not going to listen to you. He's saying judge
. I think I've already complied with this. And he's why. And if I understand what you're saying basically is that when he sent those letters to the judge, what the judge should have done is send him another letter or an order saying, let me repeat to you what I've said to you in my previous order. And then quote those two passages and then says, now you've got to apply this specific information to me now so that I can decide whether I have jurisdiction. Is that what you're saying he should have done? Not necessarily repeat. He should have said, I understand your pro say, this is the process here. The process here is, the process here is I need these, I need these submissions in spite of the fact you've already sent this. I give an example, how many times do we see this? Of course, litigation at depositions or at a hearing where the, where the litigant says, is that's the question? I let him get answers, I've already responded to that and writing, you know, you can check my interrogatories. I already sent this to my lawyers. There, there, we tell the guy, even though you, or you did that, we have the right to know right now
. And a lot of people are confused on that. If he had a lawyer and a lawyer messed it up, then I think that he should lose. But in this case, the fact that he was pro say, and he made a good faith attempt to it, is that it wouldn't have been what the judge should have done or was I indicated before. Was to, was to take that extra step and with that I'd like to save the rest of my time for a bottle. All right. Jordan. Good morning, guys. The board does not have jurisdiction at what I said. Russia. Russia
. Russia has appealed, to take up where my opponent left off, the administrative judge once Mr. Rossell sent information in to the appeal, regardless of the fact that he may have sent it to the Dallas Regional Office, the administrative judge did not have sufficient information in the record to make a determination, as to whether the board had jurisdiction over the appeal. The board would not have jurisdiction unless the administrative judge could determine that the items being brought to the attention of the board and the appeal were first brought to the attention of the Office of the Special Counsel. And the board under Ellison, which this court issued some time ago, the administrative judge cannot re-characterize the allegations made. The administrative judge must know specifically what allegations were brought to the Office of the Special Counsel. When the administrative judge could not determine that, he asked, he said specifically, because of the appears that the board may not have jurisdiction over this appeal, you are ordered to show cause in writing why this appeal should not be dismissed for lack of jurisdiction. And the administrative judge specifically said, you are ordered to specifically identify the protected disclosures that are the subject of the appeal, you must state the final. What disclosure is made? He is not a lawyer. He is a layperson. You tell a lawyer that this is an order to show cause, it means something, right? They are all lawyers
. To a layperson, if he has already submitted the evidence, and he believes he has already submitted it, what reaction would he have to, in order to show cause, could need to say I have already submitted it, you are on her, and I sent it into the Dallas Office. No, you are on her. I don't believe that. That is insufficient for a layperson to do that. I believe that is insufficient for a reasonable layperson. Why? Because if an administrative judge asks you for information, I think a reasonable layperson should reach the conclusion that he doesn't have it. Despite the fact that he may have sent it to the Dallas Office, the one thing the layperson knew is that he sent it to the Dallas Office, he know that it is down in the Washington Office. If the administrative judge tells you I need this information to determine jurisdiction, I don't think it is appropriate for a reasonable layperson to respond by saying I have already sent it. Because that should say to that layperson, he may not have it. Let me send it again. This layperson, Mr. Rachelle, did not ever say that he didn't understand the plain language that was in the order. He never sent a copy of the complaint that he filed with the Office of Special Counsel. To the agency or to the judge? To the judge. He never sent it to the court. But he did send it to the agency. Well, he sent it later on to the board, but even, but that was after the initial decision. That has been issued. And in that, what we call close out letter, it didn't say what was filed with the Office of Special Counsel. The only thing that the Office of Special Counsel said in the letter, the order of the student, the letter from the Office of Special Counsel is at, in the Joint Appendix page 54
. This layperson, Mr. Rachelle, did not ever say that he didn't understand the plain language that was in the order. He never sent a copy of the complaint that he filed with the Office of Special Counsel. To the agency or to the judge? To the judge. He never sent it to the court. But he did send it to the agency. Well, he sent it later on to the board, but even, but that was after the initial decision. That has been issued. And in that, what we call close out letter, it didn't say what was filed with the Office of Special Counsel. The only thing that the Office of Special Counsel said in the letter, the order of the student, the letter from the Office of Special Counsel is at, in the Joint Appendix page 54. It only says that this is to notify that you have a right to seek corrective action. And it goes on to say, you may seek corrective action from the MSPV under the provisions of five USC, Section 1214, the Mary-Sister-Pasexan Board Regulations, concerning the right to file an individual right of action, with the board can be found. And they list that it does not say what Mr. Rachelle filed with the Office of Special Counsel. Remember, I said earlier, that the board cannot recarcturize the complaint. The board cannot take what Mr. Rachelle filed with the Office of Special Counsel and take something else that he filed with the board. But what degree of specificity does a person who is proceeding on his own needs to establish the type of jurisdiction that the judge was looking for at this particular level? Can he do it by sending in the letter that you decided, or does he need additional documentation? The letter, the order to show calls doesn't show that, does it? The letter of show calls, asks Mr. Rachelle to say what he disclosed. It said, who asked him to say who he made it to? It asks him to say when it was made
. It only says that this is to notify that you have a right to seek corrective action. And it goes on to say, you may seek corrective action from the MSPV under the provisions of five USC, Section 1214, the Mary-Sister-Pasexan Board Regulations, concerning the right to file an individual right of action, with the board can be found. And they list that it does not say what Mr. Rachelle filed with the Office of Special Counsel. Remember, I said earlier, that the board cannot recarcturize the complaint. The board cannot take what Mr. Rachelle filed with the Office of Special Counsel and take something else that he filed with the board. But what degree of specificity does a person who is proceeding on his own needs to establish the type of jurisdiction that the judge was looking for at this particular level? Can he do it by sending in the letter that you decided, or does he need additional documentation? The letter, the order to show calls doesn't show that, does it? The letter of show calls, asks Mr. Rachelle to say what he disclosed. It said, who asked him to say who he made it to? It asks him to say when it was made. He said, you must also indicate whether you reasonably believe that your disclosure evidence is a violation of law, brutal regulation, or gross mismanagement, gross race of funds, or brews of authority or substantial, or whether it's a substantial, suspicif, and specific danger to probably get it safe. In addition, Mr. Rachelle was told that he must show that his protected disclosures were brought to the Office of Special Counsel. To me, which is not clear to me, I just want to be sure of this order, the order to show calls, it's just captured in order. It's the street page document dated March 4, 2008, and various parts of the underline was the underlining in what was given to him, or was that something that was added in the course of preparation of the joint appendix? No, this was underlined in what was given to Mr. Rachelle. So what he received was this order with some underlining things, and then the word on the second page in the middle of it, after saying you should show calls, then it says you are ordered, and the word ordered is all in capitals, and that's where the underlining begins. So in other words, the administrative judge told this person, this is specifically what I want you to do and what you've got to do in order to establish jurisdiction, and I've told him various specific things that he was required to present. We believe that the order that was issued by the administrative judge was sufficiently clear from Mr. Rachelle to have responded to it, and instead Mr
. He said, you must also indicate whether you reasonably believe that your disclosure evidence is a violation of law, brutal regulation, or gross mismanagement, gross race of funds, or brews of authority or substantial, or whether it's a substantial, suspicif, and specific danger to probably get it safe. In addition, Mr. Rachelle was told that he must show that his protected disclosures were brought to the Office of Special Counsel. To me, which is not clear to me, I just want to be sure of this order, the order to show calls, it's just captured in order. It's the street page document dated March 4, 2008, and various parts of the underline was the underlining in what was given to him, or was that something that was added in the course of preparation of the joint appendix? No, this was underlined in what was given to Mr. Rachelle. So what he received was this order with some underlining things, and then the word on the second page in the middle of it, after saying you should show calls, then it says you are ordered, and the word ordered is all in capitals, and that's where the underlining begins. So in other words, the administrative judge told this person, this is specifically what I want you to do and what you've got to do in order to establish jurisdiction, and I've told him various specific things that he was required to present. We believe that the order that was issued by the administrative judge was sufficiently clear from Mr. Rachelle to have responded to it, and instead Mr. Rachelle responded that he had already provided it, and we believe that because Mr. Rachelle did not respond, Case Law said that he did so at his own peril. He had specific things which the administrative judge asked him to do, that the administrative judge couldn't take what he sent, and from that the term on what was filed with the Office of Special Counsel, the only way the board has jurisdiction is to ensure that what was filed with the board was the same allegations that this appellant made to the Office of Special Counsel. And since it was not in the record before the administrative judge, we got to supply it was not in the record. The administrative judge took it upon himself, and we think right is so, to send out an order to the appellant Mr. Rachelle to ask him for this particular information, Mr. Rachelle did not provide it, and since he did not provide it, the administrative judge could not make the determination that the board had jurisdiction. And since he could make the determination that the board had jurisdiction, we believe that the administrative judge appropriately dismissed this appeal for lack of jurisdiction. Well, he said, but he answers that by saying, but he thought he's just a pro-Sailer again, he's not a lawyer, he thought he had already supplied this information, and that's what he told the administrative judge, and the administrative judge instead of saying, no, you haven't supplied it, I don't have it, I'm ordering you again to supply it, the administrative judge just who signed on the next thing that the administrative judge has said, I'm dismissing the case for lack of jurisdiction. That's his argument, and I mean, and I take your answer to that, is the board, the judge had no requirement that the judge do that
. Rachelle responded that he had already provided it, and we believe that because Mr. Rachelle did not respond, Case Law said that he did so at his own peril. He had specific things which the administrative judge asked him to do, that the administrative judge couldn't take what he sent, and from that the term on what was filed with the Office of Special Counsel, the only way the board has jurisdiction is to ensure that what was filed with the board was the same allegations that this appellant made to the Office of Special Counsel. And since it was not in the record before the administrative judge, we got to supply it was not in the record. The administrative judge took it upon himself, and we think right is so, to send out an order to the appellant Mr. Rachelle to ask him for this particular information, Mr. Rachelle did not provide it, and since he did not provide it, the administrative judge could not make the determination that the board had jurisdiction. And since he could make the determination that the board had jurisdiction, we believe that the administrative judge appropriately dismissed this appeal for lack of jurisdiction. Well, he said, but he answers that by saying, but he thought he's just a pro-Sailer again, he's not a lawyer, he thought he had already supplied this information, and that's what he told the administrative judge, and the administrative judge instead of saying, no, you haven't supplied it, I don't have it, I'm ordering you again to supply it, the administrative judge just who signed on the next thing that the administrative judge has said, I'm dismissing the case for lack of jurisdiction. That's his argument, and I mean, and I take your answer to that, is the board, the judge had no requirement that the judge do that. I believe there's no requirement that the judge do that in this particular case, because he had already sent what I believe is a clear order for Mr. Rachelle to supply information, and to the extent that Mr. Rachelle, even if he thought that he had already supplied it, he is now getting an order subsequent to when he has supplied it, which to me should have suggested to a reasonable person that regardless of whether I supplied it or not, he does not have it. So let me supply this again. But it could have been two things, either he doesn't have it, or he has it, but he didn't think that what was in there was sufficient, that's another possibility. Even though we believe that Mr. Rachelle was derelict and not supplying the information that the administrative judge requested, and we believe that at that point, on the other side... Let me ask you a slightly different hypothetical and see what you would say, is it, suppose the administrative judge sends him out this order, and his response instead of saying, well I submitted all of this information, his response was, I've been mistreated by the government and I demand redress, that's all he says, was there any obligation on the administrative judge to come back to him, and so you haven't answered my order at all? Or is that, is that, in other words, the real question, I take it that is posed by your opponent, in what situation circumstances does the administrative judge have some additional obligation to tell a pro-Sélethic and look, you haven't satisfied what I told you to do, and this is what you've got to do
. I believe there's no requirement that the judge do that in this particular case, because he had already sent what I believe is a clear order for Mr. Rachelle to supply information, and to the extent that Mr. Rachelle, even if he thought that he had already supplied it, he is now getting an order subsequent to when he has supplied it, which to me should have suggested to a reasonable person that regardless of whether I supplied it or not, he does not have it. So let me supply this again. But it could have been two things, either he doesn't have it, or he has it, but he didn't think that what was in there was sufficient, that's another possibility. Even though we believe that Mr. Rachelle was derelict and not supplying the information that the administrative judge requested, and we believe that at that point, on the other side... Let me ask you a slightly different hypothetical and see what you would say, is it, suppose the administrative judge sends him out this order, and his response instead of saying, well I submitted all of this information, his response was, I've been mistreated by the government and I demand redress, that's all he says, was there any obligation on the administrative judge to come back to him, and so you haven't answered my order at all? Or is that, is that, in other words, the real question, I take it that is posed by your opponent, in what situation circumstances does the administrative judge have some additional obligation to tell a pro-Sélethic and look, you haven't satisfied what I told you to do, and this is what you've got to do. That's his argument as I understand it. Maybe, if Mr. Rachelle had said, I don't understand your order, then on those circumstances, maybe the administrative judge could have, you know, sent something to try to clarify. Who was he required to? No sir. That's the question, and as the case comes to us, he's asking us to say that the administrative judge had an obligation to do this, and you know, let's suppose that's the only answer that he got this order and says, I don't know what you're talking about. Is that the end of it? Can the administrative judge at that point then say, well, 15 days of all apps, you haven't given me the information I saw it, I'm dismissing the case. Maybe if Mr. Rachelle had written back, instead of saying, I have already supplied this information, if he had written back, maybe, and said, I don't understand the order, maybe at that point the administrative judge could have. Well, isn't the question of could have the question is the administrative judge, he would say must have. You say the administrative judge could have done this, but the question is whether the administrative judge would require to do it as I understand it
. That's his argument as I understand it. Maybe, if Mr. Rachelle had said, I don't understand your order, then on those circumstances, maybe the administrative judge could have, you know, sent something to try to clarify. Who was he required to? No sir. That's the question, and as the case comes to us, he's asking us to say that the administrative judge had an obligation to do this, and you know, let's suppose that's the only answer that he got this order and says, I don't know what you're talking about. Is that the end of it? Can the administrative judge at that point then say, well, 15 days of all apps, you haven't given me the information I saw it, I'm dismissing the case. Maybe if Mr. Rachelle had written back, instead of saying, I have already supplied this information, if he had written back, maybe, and said, I don't understand the order, maybe at that point the administrative judge could have. Well, isn't the question of could have the question is the administrative judge, he would say must have. You say the administrative judge could have done this, but the question is whether the administrative judge would require to do it as I understand it. I think it would depend on what Mr. Rachelle wrote to the administrative judge, and what he said in his response to the administrative judge at that point. And since we don't have what he had written, here, he didn't say that he had a lack of understanding on what. He just went on the fact that I already sent it, you asking for it again, I mean the conclusion could be reached. One scenario is that I sent it already, you should have it, you asked me for it again, and I'm not sending it. But a reasonable person, to me, a reasonable layperson would have looked at the order that said, I'm going to dismiss this appeal for lack of jurisdiction, unless you provide this information. So if I don't want my appeal to be dismissed, rather than to respond by saying, I already sent it, I'm going to send what the administrative judge requested. And I think even a layperson would have responded and said some information according to what the administrative judge had requested on it. But he didn't. So since the administrative judge could not tell whether or not the allegations made in the appeal were the same allegations that were made before the Office of Special Counsel
. I think it would depend on what Mr. Rachelle wrote to the administrative judge, and what he said in his response to the administrative judge at that point. And since we don't have what he had written, here, he didn't say that he had a lack of understanding on what. He just went on the fact that I already sent it, you asking for it again, I mean the conclusion could be reached. One scenario is that I sent it already, you should have it, you asked me for it again, and I'm not sending it. But a reasonable person, to me, a reasonable layperson would have looked at the order that said, I'm going to dismiss this appeal for lack of jurisdiction, unless you provide this information. So if I don't want my appeal to be dismissed, rather than to respond by saying, I already sent it, I'm going to send what the administrative judge requested. And I think even a layperson would have responded and said some information according to what the administrative judge had requested on it. But he didn't. So since the administrative judge could not tell whether or not the allegations made in the appeal were the same allegations that were made before the Office of Special Counsel. The administrative judge at that point had no choice but to dismiss it because he couldn't determine whether or not the appeal was correct. That's the only issue before the administrative judge, whether what was stated in his complaint was the same thing that he had stated before the Office of Special Counsel. Well, that would be the first I have been to you. He also has to show that there was whistle blowing. Yes. And that he was had adverse action taken against him as a consequence of that. He had to show that too before the board would have jurisdiction over the whistle blow. Yes, he would, but in order to show that the first item is to determine that what was being appealed to the board is the same items that were brought to the court. And that would be the same thing that was being done to the attention of the Office of Special Counsel. Those analysis come later to determine whether or not he reasonably believed whether or not he made a protected disclosure whether or not he reasonably believed all of those would come later
. The administrative judge at that point had no choice but to dismiss it because he couldn't determine whether or not the appeal was correct. That's the only issue before the administrative judge, whether what was stated in his complaint was the same thing that he had stated before the Office of Special Counsel. Well, that would be the first I have been to you. He also has to show that there was whistle blowing. Yes. And that he was had adverse action taken against him as a consequence of that. He had to show that too before the board would have jurisdiction over the whistle blow. Yes, he would, but in order to show that the first item is to determine that what was being appealed to the board is the same items that were brought to the court. And that would be the same thing that was being done to the attention of the Office of Special Counsel. Those analysis come later to determine whether or not he reasonably believed whether or not he made a protected disclosure whether or not he reasonably believed all of those would come later. He never had the first item. He never had the documentation to determine whether or not what he filed before the board was the same that he filed before the Office of Special Counsel. So he couldn't even get to the second and third stages of the analysis. We believe that since the administrative judge could not determine what was filed with the Office of Special Counsel that he appropriately dismissed this case for lack of jurisdiction and the board's decision should be affirmed. Thank you. I think your honor's questions to the respondent of kind of other score of out of the points. I'm sorry. I think the your honor's questions have underscored to my adversary of underscored a lot of the points I've made already. So I'm not, I don't have anything further to add on rebuttal. That's okay
. All right. Thank you. The case is submitted