[00:00:01] Speaker 03:
This case is 25-9547, Peary v. Blanche.

[00:00:05] Speaker 02:
Mr. Weier? Thank you, Your Honors. Good morning, Your Honors, and may it please the Court. My name is Clayton Weier. I'm here today on behalf of petitioners Tammy Pyree and Miles Pimentel. I'd like to reserve three minutes for rebuttal.

[00:00:18] Speaker 02:
The question before this Court is straightforward. Does the statute here, 41 U.S.C. 4712, by stating clearly that that it protects employees and employee of a grantee, does it protect petitioners here who were indisputedly employees of a grantee at the time that they were terminated? The answer to that question, indisputably, must be yes. And that comes from at least the clear text of the statute.

[00:00:51] Speaker 02:
But it also comes from a refutation of respondents' positions here. First, the clear text of the statute is clear. clear, unambiguous, plain text. It begins with, an employee of a grantee is protected from reprisal. Second, respondents here attempt to impose tacit or implied exceptions to that clear statement of protection through use of procedural provisions as well as undefined terms within the statute.

[00:01:21] Speaker 03:
And you're not claiming that Pikes Peak had... They're a subgrantee of the University of Colorado, Colorado Springs. So their knowledge of the statute is based on other grants, right? Grants unrelated to this particular program.

[00:01:45] Speaker 02:
So I think that there's an important factual background here, Your Honor. So Pikes Peak, for the OVW grant, was a subgrantee. Pikes Peak had other. direct federal grants with both the Department of Education and the Department of Labor that were in place at the time they terminated petitioners here. Petitioners worked in Pikes Peak's grants department.

[00:02:09] Speaker 03:
Those other grants are your link to the statute?

[00:02:12] Speaker 02:
That's correct, Your Honor.

[00:02:15] Speaker 02:
And that is pursuant to the clear text of the statute. The statute creates no linkage or no limitations.

[00:02:24] Speaker 01:
Then what you next have to... persuade us of that an employee of a grantee who files a complaint can file a complaint about a grant that they are not a grantee on but a subgrantee. Is that right? You have to persuade us of that.

[00:02:51] Speaker 02:
I don't know that I have to persuade you of that. I think the clear text alone is, Your Honor, but there is myriad textual evidence for exactly that proposition. Well, that's what you're trying to persuade us now. I will try to, Your Honor.

[00:03:03] Speaker 02:
So what's important is 4712 was, as respondents acknowledge, was a next step statute in a process of trying to expand whistleblower protections. Itself, it was called an Enhancement to Whistleblower Protections. It was explicitly to expand the protections from statutes like 10 U.S.C. 2409 and 41 U.S.C.

[00:03:25] UNKNOWN:
4705.

[00:03:25] Speaker 02:
And this is a 2013 statute. That's correct, Your Honor. And so in 2013, Congress enacted the National Defense Authorization Act of 2013. In that bill, it both enacted 4712, the statuted issue here, but it also amended to 409, which is a statute that explicitly applies to only Department of Defense and NASA contractors.

[00:03:58] Speaker 02:
It also suspended 41 USC 4705, which only applied to federal contractors. What's important here, Your Honors, is that Congress made the choice when looking at these three bills in 4712 to use inclusive language instead of saying, in the protected activity, for instance, a grant or contract relating to a Department of Defense contract or a concern relating to a Department of Defense contract.

[00:04:34] Speaker 02:
What Congress said is a grant or contract or a concern relating to a grant or contract, a federal grant or contract, and it may protected activity being reporting a concern about gross waste of federal funds. explicitly expanding the protected activity within the statute and the coverage of the statute to all grantees. Important here is also within that bill. So in that bill, we've got Section 827, which amends 4209, which is the Department of Defense statute.

[00:05:12] Speaker 02:
Then we have 828, Section 828, which enacts 4712, the statute here.

[00:05:19] Speaker 02:
In that statute, in that bill, it expressly states that 4712 shall apply to all federal grants. It says, shall apply to all federal grants after the effective date.

[00:05:34] Speaker 02:
It only provides notice or some sort of change requirement to grants and contracts in existence at that time.

[00:05:44] Speaker 02:
Now, I think it's also important to compare 4712 to 2409, which is the subject of this Court's decision that's unpublished but is persuasive here, I believe, in the Sejka case. 2409 provides specific definitions for agency, head of agency, contract, and contractor.

[00:06:07] Speaker 02:
Congress did not include any of those definitions or any similar definitions within 4712.

[00:06:16] Speaker 02:
In fact, what Congress chose to do is not include limitations. It chose to use broad terms like federal funds, federal grants, instead of specific department grants. Now, Your Honor, going to your question about raising a concern regarding a separate grant or a separate issue, there's at least several cases that stand for the proposition that raising a concern that is not the direct grant or is not the grant that the employee is working under still are protected activity.

[00:06:48] Speaker 02:
And keep in mind here, the Department of Justice, who issued the order that we're here because of, never conducted a factual investigation.

[00:06:57] Speaker 02:
All of this is based on their supposition and their interpretation of the statute. But both in SEJCA, which is this court unpublished case, which is the 2409 case, That case explicitly dealt with plaintiffs there who worked under a subcontract, and they raised concerns regarding a separate contract. Admittedly, that was Department of Defense. But if 2409 could be interpreted to reach those individuals, then 4712, which is explicitly to enhance and expand, should as well.

[00:07:37] Speaker 01:
I can't remember what your opposition claimed, why that was inapplicable, that case.

[00:07:46] Speaker 02:
It was mostly because it was a different statute, Your Honor, and it was because both the subcontract and the contract were with the same agency. Whereas here we have two grants that were with two separate agencies and a subgrant that was with another agency.

[00:08:07] Speaker 01:
Then why did the court in SICA, is that how you pronounce it?

[00:08:12] Speaker 02:
I believe it's SEJCA, but I could be completely destroying that name.

[00:08:16] Speaker 01:
Why did the court have to get into the issue in that case about a complaint about a grant that the complainant was not acting on?

[00:08:29] Speaker 02:
The reason was, Your Honor, is because similar to Respondent's argument here, in SEJCA, it was dealing with 4209, which was later amended to explicitly include subcontractors as employers to whom that statute applied. And here later, admittedly after petitioners were terminated, Congress amended 4712 to explicitly include subgrantees. And so, what SEJCA was dealing with was that anomaly, right?

[00:09:02] Speaker 02:
We've got one statute that applies that says only contractors. It's later amended to include subcontractors. So, we have to deal with employees who are working under a subcontract blowing the whistle on a contract. What happens there? And so, similarly here, we have employees, petitioners, who were working in relation to all of Pikes Peak's grants who raised concerns regarding a federal grant and were terminated for doing so. And Pikes Peak was undisputedly a grantee at the time of that termination.

[00:09:37] Speaker 03:
Now, Pikes Peak is not part of the University of Colorado system, is it? There's no formal linkage to the Colorado Springs CU campus?

[00:09:48] Speaker 02:
Your Honor, there was no factual investigation done. And so part of the problem here is that the record is silent on a lot of these issues. I mean, through my own knowledge, I don't believe that it is.

[00:10:00] Speaker 03:
But your argument would be the same if the grant had been to the Air Force Academy and your clients had blown the whistle on impropriety of that grant.

[00:10:09] Speaker 02:
Correct, Your Honor. And that's the purpose of 4712, right, is to encourage whistleblowers to come forward and report concerns with the waste of federal funds broadly.

[00:10:20] Speaker 04:
So any grant...

[00:10:22] Speaker 04:
So not just the ones that Pikes Peak might be involved in. As long as Pikes Peak is a grantee, these employees could blow the whistle on somebody in Alabama or Florida or anywhere.

[00:10:38] Speaker 02:
They could. And if they suffered reprisal for that, then that's what gives rise to the claim. And I think that's reflected, Your Honor. in the categories of protected activity at issue. So the way the statute is organized is we have subsection A that provides the subject, the employees and their protected activity. And within that protected activity are six separate categories, many of which do not require any sort of relationship with a federal grant or contract.

[00:11:10] Speaker 02:
Specifically, the gross waste of federal funds has no relationship to a specific grant or contract. Also, raising a concern about a substantial danger to public health or safety, no relationship to a federal grant or contract. We know that Congress made that specific decision because in the other categories, it specifically says related to a federal grant or contract. But in others, it doesn't. if we were to exclude folks like you were just talking about, we'd be rendering those provisions that bear no relationship to a federal grant or contract superfluous.

[00:11:45] Speaker 03:
You know, the remedies section gives quite a bit of discretion to the agency, including under one reading not to take any action at all. If we agreed with you and remanded back to DOJ and they give a different reason,

[00:12:07] Speaker 02:
We may end up right back here, but I think what's important is reading that remedies provision in its context and what it pulls in. So the remedies provision provides discretion as to what sort of relief, but by referencing the Whistleblower Protection Act, which is 5 U.S.C. 1221 subsection E, what it does is the statute says that is controlling.

[00:12:38] Speaker 02:
And it's controlling as to the head of the agency's determination and relief. And within that provision, which the statute says is controlling, it specifically states the Board, here the agency, shall award relief if the claimant proves that their protected activity was a contributing factor. And then in the next provision it says, no relief may be granted if the employer proves by clear and convincing evidence that it would have taken the same action, even in the absence of the protected activity.

[00:13:11] Speaker 02:
So by incorporating that statute as controlling, Congress made the explicit statement that it is not a discretionary act to deny relief when it's appropriate, when claimant has proved their claim. It is appropriate discretion to choose the relief, but not grant the relief in the first place. And I think what's important here as well, Your Honor, is that DOJ never conducted an investigation, right? They based their discretion entirely on the idea of notice. And notice isn't reflected in the statute anywhere, nor is it reflected in the bill that enacted the statute.

[00:13:46] Speaker 02:
But I think one of the things that's important to understand here as well is that in footnote one of the order, the Department of Justice and OVW explicitly admit and concede that they are the agency concerned.

[00:14:00] Speaker 02:
So it's anomalous here for them to, on one hand, admit they're the agency concerned, which has a broad common meaning to mean having an interest in, but at the same time say we don't have authority to issue an order or we don't have authority to issue relief. They admit they're the agency concerned. Therefore, 4712 empowers them to grant that relief.

[00:14:23] Speaker 02:
I'll reserve the rest of my time. Thank you. You may.

[00:14:41] Speaker 00:
Good morning, Your Honors. Janie Lilly on behalf of the respondents.

[00:14:46] Speaker 00:
Your Honors, this case turns on a fairly narrow and simple issue. The Department of Justice had no authority to order a sub-grantee to remedy a reprisal under the statute.

[00:15:02] Speaker 00:
I'd like to start with the text of the remedial provision of the statute, 4712C1, which...

[00:15:11] Speaker 01:
4712 what? C1. Before we go to C1, why don't we talk about the primary provision that gives relief to people who are employees of a grantee. And here we had employees of a grantee of a grant from the Department of Education.

[00:15:37] Speaker 00:
Yes, Your Honor.

[00:15:37] Speaker 01:
And a grant from the Department of Labor.

[00:15:40] Speaker 00:
Yes, Your Honor.

[00:15:41] Speaker 01:
So why doesn't that just take care of that?

[00:15:46] Speaker 00:
That may suggest that they are protected by virtue of those grants from other agencies. But the complaint here was brought before the Department of Justice. And so the Department of Justice heard the complaint, reviewed the report of investigation by the Department of Justice's Office of Inspector General, and at which point The Department of Justice's authority under the statute to remedy or to take enforcement action is based on 4712C1.

[00:16:19] Speaker 00:
And there, the... Hold on, let me get there.

[00:16:24] Speaker 03:
All right. Before you go there, are you saying that Pikes Peak would have to be a grantee of a Department of Justice grant for there to be coverage under 4712A? For the...

[00:16:40] Speaker 00:
for the Department of Justice to be able to take remedial action based on the protections of the statute. That, as explained in the agency's order and in our brief, the request for relief was from the Department of Justice and 4712 limits the authority of the agency to ordering its own grantees to take certain action, and that's what the Department of Justice did.

[00:17:10] Speaker 00:
It wrote a letter to its grantee, apprising the grantee of these allegations of reprisal by the subgrantee, but it could not take direct action against what was a subgrantee and was not covered by the statute at the time.

[00:17:29] Speaker 04:
Okay, let me ask you this. So, say there are two grants.

[00:17:34] Speaker 04:
Well, about one grant and one subgrant. Yes. Both going back to the Department of Justice. Yes. Complaint arises under the subgrant. What's your authority then?

[00:17:46] Speaker 00:
Now that the, I assume this is pre-amendment.

[00:17:49] Speaker 04:
Yes.

[00:17:51] Speaker 00:
I think that would present a very different question. But there, the Department of Justice would have a relationship and would be able to order And so the same problems associated with the remedial authority wouldn't obtain. It would have a direct relationship with the same entity that was both a grantee and a subgrantee.

[00:18:12] Speaker 04:
Okay, so in your mind, at least as I understand your position, your colleague's position is not entirely without merit. It's just without merit because the grantee relationship with Pikes Peak has to do with different agencies?

[00:18:33] Speaker 00:
MS. Your Honor, I think we're making both arguments. But at a minimum, the simple answer here is that the Department of Justice had no authority with respect to its subgrantee. We've also made the argument that because it was related, the reprisal and the allegations were related to a subgrant that was not covered by the statute at the time, that the Department of Justice lacked authority.

[00:19:03] Speaker 00:
But at the very minimum, the Department of Justice lacked authority over a subgrantee, and the court could stop there to deny the petition for review.

[00:19:12] Speaker 01:
Go ahead.

[00:19:23] Speaker 00:
Your Honor, Judge Murphy asked questions about the Sejka case, assuming I'm pronouncing that correctly.

[00:19:32] Speaker 00:
And the answer here is that that case is different because it was, in fact, the same agency that had a relationship with the entity that was both a grantee covered by the statute and a sub-grantee there. So consistent with that case, the Department of Justice took the position that the statute doesn't cover it here because it doesn't have the relationship with the sub-grantee.

[00:20:01] Speaker 01:
Why doesn't the analysis, even though they're different statutes, why doesn't the analysis that was applied in SEJCA apply here?

[00:20:11] Speaker 00:
Your Honor, with respect to the first argument, the argument that I made at the outset about the scope of DOJ's remedial authority, it is consistent with SEJCA that in SEJCA, the Department of Defense had remedial authority over an entity that was both a grantee covered by the statute and a subgrantee that was not covered by the statute. Here, that authority is lacking entirely from DOJ.

[00:20:40] Speaker 00:
So it is consistent with SEJCA.

[00:20:43] Speaker 04:
Can I back you up just a little bit?

[00:20:44] Speaker 00:
Yes.

[00:20:47] Speaker 04:
Just so I understand this authority question. for remedial authority. So I guess you would say 4712B, a person who believes that the person has been subjected to a reprisal prohibited by subsection A may submit a complaint to the inspector general of the executive agency involved.

[00:21:14] Speaker 00:
Yes.

[00:21:15] Speaker 04:
Right?

[00:21:16] Speaker 04:
And so that would be They can't submit this to the Department of Education or another department. They had to submit this to you because it's a Department of Justice grant. The subgrant comes from a Department of Justice grant.

[00:21:40] Speaker 04:
And so the DOJ inspector is the only person who they could submit it to. And because they are a subgrantee, they can't do it.

[00:21:51] Speaker 00:
think that they can submit the complaint as they did here because it is about the administration of a DOJ grant, but that DOJ would not be allowed by virtue of the absence of authority over subgrantees to take remedial action with respect to the subgrant.

[00:22:13] Speaker 04:
Of course, whistleblowers... We may be speaking past each other. I guess my My question is, if this was a Department of Education grant or subgrant, the Department of Education, in your mind, would have the authority to take remedial action.

[00:22:35] Speaker 04:
Yes, Your Honor.

[00:22:36] Speaker 00:
Same posture, but we're talking about the Department of Education.

[00:22:41] Speaker 00:
If I understand your correct, I want to make sure I understand your hypothetical correctly. The Department of Education issues a grant to Pikes Peak, a direct grant to Pikes Peak employees, alleged reprisal related to disclosures related to the Department of Education grant. No, they would be grantees.

[00:23:05] Speaker 04:
There would be no question about that.

[00:23:06] Speaker 00:
Right.

[00:23:07] Speaker 04:
So my hypothetical would be?

[00:23:10] Speaker 04:
that I guess maybe there are two grants, both through the Department of Education. Yes. But one of them is a subgrant.

[00:23:19] Speaker 04:
And so they make a, and this goes solely to the remedial authority idea, they make a complaint to the Department of Education about the subgrant.

[00:23:30] Speaker 04:
The Department of Education would have remedial authority, but I'm not asking you to concede that that would be covered because it's a subgrant, but this remedial authority idea would play out differently.

[00:23:44] Speaker 00:
And so that would be closer to the SEJCA facts in that case, if I'm understanding the hypothetical correctly. Yes.

[00:23:52] Speaker 01:
Let me ask you, why is this the wrong analysis? The breadth of subsection A relating to employees and grantees is for the purpose of standing. a standing type issue.

[00:24:07] Speaker 01:
Uh, and, and then you go to B1 and it tells you who you must complain to. And you complain to, uh, the inspector general of the executive agency involved, which is not department of education or labor, but department of justice. So that's what they did. And then, uh, And that fits in nicely with the same analysis under C1, that no later than 30 days after receiving an Inspector General report, the head of the executive agency concerned.

[00:24:49] Speaker 01:
Isn't that what the analysis is?

[00:24:53] Speaker 00:
That could be, Your Honor. But then if you go to subsection... Okay, then why shouldn't it be? If you continue with the rest of the provision of C1...

[00:25:04] Speaker 00:
the authority of the agency is limited in the way that we've described, that it has authority over, it's only over those entities with which it has a relationship. And you can imagine why this makes sense, that in the context of government grants and contracts... What language in C-1 says that? That it should order the contractor or grantee to take affirmative action or...

[00:25:33] Speaker 00:
to abate the reprisal, to reinstate the person. And one can imagine if the Department of Justice is telling a Department of Education grantee how to operate its grant, what sorts of remedial action it should take in the context of that grant, that would make very little sense. That the relationship between the granting agency and the granting or post-amendment sub-granting entity is the context in which the remedial scheme operates.

[00:26:06] Speaker 00:
The granting agency can determine whether reinstatement of a particular employee is appropriate in the context of the way the grant has played out in the relationships. But the Department of Justice wouldn't have that knowledge with respect to how a Department of Education grant is being fulfilled and completed. So the The context of 4712 is within the context of the granting agency and the grantee.

[00:26:35] Speaker 03:
But you agree that under C1 that DOJ is the executive agency concerned?

[00:26:44] Speaker 03:
Under C1. DOJ here is, it says, the head of the executive agency concerned, and that would be?

[00:26:56] Speaker 03:
The executive agency concerned is DOJ.

[00:26:59] Speaker 00:
With the underlying complaint of retaliation, the sort of complaints related to the grant.

[00:27:09] Speaker 00:
I think in that context, yes, Your Honor.

[00:27:12] Speaker 03:
And the problem here is that, from your perspective, the problem here is that there's basically a break in the linkage between the grant to UCCS and the subgrant to Pikes Peak Community.

[00:27:28] Speaker 00:
A link that was extended several years after the events at issue here. And so now it's clear that subgrantees are bound by the terms of 4712 and that they're subject to this remedial scheme. That when they accept money from the federal government as a subgrantee, that they are subject to all the remedial provisions, this administrative process, for protecting whistleblowers against reprisal.

[00:28:04] Speaker 04:
Tell me if this is a fair analogy.

[00:28:10] Speaker 04:
Say we have a criminal case and the Department of Justice is prosecuting someone and the defendant says, I need discovery from the Bureau of Land Management. I want them to turn over all of their documents that are relevant, that concern me and that I think might be relevant to this case.

[00:28:31] Speaker 04:
Often, the Department of Justice U.S. Attorney's Office says, sorry, that's a different agency. We have these silos and I, U.S. Attorney, can't go to the Bureau of Land Management and enforce them to turn over all their documents. I mean, is that sort of what's going on here? You have your view of this is these agencies are silos unto themselves. And if you are a Department of Education grantee, you've got to deal with the Department of Education.

[00:29:01] Speaker 04:
If you are a Department of Justice grantee, if there's a problem, you have to deal with the Department of Justice.

[00:29:08] Speaker 00:
Your Honor, I cannot speak to the the hypothetical about prosecutorial discretion to compel disclosure of Bureau of Land Management documents. I suspect that's a very different case. But with respect to the silos, I think the way that federal grants and contracts work is that they are between a particular entity and a particular agency to perform specific activities. And the way that 4712 was enacted is a term and condition of a particular grant or a particular contract.

[00:29:41] Speaker 00:
And therefore, the sort of expertise, the adjudication of mismanagement of the contract and allegations of retaliation related to mismanagement of the contracts is in the context of the agency-grantor relationship.

[00:30:00] Speaker 00:
And that is how government grants and contracting works. and that is how 4712, as a term and condition of a grant and contract work, whether that's a silo or a contractual analysis, that's how this statute.

[00:30:17] Speaker 03:
And is that what the decision said, that they had no authority to provide a remedy?

[00:30:27] Speaker 00:
Yes, Your Honor, that 4712 was limited to, you know, was, did not include their subcontractor relationship with the agency, and so the agency was declining or could not provide relief. All right. Thank you. Your time's expired. Thank you, Your Honor.

[00:30:46] Speaker 03:
Mr. Weyer, you can have a minute.

[00:30:57] Speaker 02:
Thank you, Your Honors. Much of this does turn on involved and concerned. I think what's important to understand here is that the Department of Justice and OVW admit that they are the agency concerned under C-1. If you look at footnote one of the order, and if you look at Judge Murphy, you were asking questions around B-1 of the statute. If you look at that, it refers to the agency involved as referring back to the subject of the statute, the protected activity by the employee.

[00:31:32] Speaker 02:
It says a person who believes the person has been subjected to a reprisal prohibited by subsection A, referring back to the general rule, may submit a complaint to the inspector general of the executive agency involved. Involved there modifies and relates back to subsection A. It does not relate back to any sort of grantor-grantee relationship. In fact, the way that respondents are interpreting this statute would add in language that does not exist.

[00:32:02] Speaker 02:
The statute does not say, as a term and condition of all grants and contracts going forward, it shall be that all employers or all grantees cannot take reprisal actions against. It's worded in the passive voice that employees of grantees are protected from reprisal. That is the subject. That is the purpose of the statute. And you note from the use of terms like federal, and involved that this statute expanded, not limited.

[00:32:32] Speaker 03:
If Pikes Peak had issued a sub-sub grant using these same funds to, let's just say, a private community organization or private business, and that sub-sub grantee had no other federal grant, would that break the chain of remediation?

[00:32:56] Speaker 02:
As long as petitioners were still employed by a grantee and they're raising concerns that are within one of the six areas of protected activity, then there is no tethering or requirement of whether it's a subgrant or a sub-subgrant. Notice, for instance, waste of federal funds. A sub-subgrantee could be wasting federal funds in the same manner as a direct grantee, or a sub-subgrantee could be engaging in a substantial danger to public health or safety.

[00:33:27] Speaker 02:
in the same way that a grantee could. And also, grantee is not exclusive of subgrantees. Many contractors are subcontractors. Many grantees are also subgrantees. And it would be creating this carve-out, this limit that's not within the statute, to exclude the petitioners here.

[00:33:45] Speaker 01:
Go ahead. Okay, but under C1A.

[00:33:51] Speaker 02:
Yes, sir.

[00:33:55] Speaker 01:
Remedy order order the contractor or grantee to take affirmative action. Yes that sounds like You're asking the Department of Justice to order the grantee Department of Education or the Department of Labor to take affirmative action So two points here your honor one you'll notice that this uses Undefined terms right head of agency not a defined term under this statute

[00:34:24] Speaker 02:
but importantly, it uses the term involved. And if we look back at subsection A, in A2 are the persons to whom protected activity can be reported. Included within that list are agencies, including the Department of Justice. And so the term involved relates back to the protected activity that can involve other agencies. And so This statute empowers an agency involved in the protected activity to grant remedial relief.

[00:34:56] Speaker 02:
That is the plain reading. But secondarily, Your Honor, we sued the Department of Education. We sent a demand letter to the Department of Education, along with DOJ. It was the DOJ who made the decision during the pendency of a district court case where we sued under the APA to issue an order that had been unlawfully withheld. It was the DOJ who made the decision to issue the order here and accept its status as the agency concerned.

[00:35:26] Speaker 02:
And its status as the agency concerned demonstrates that Concerned that idea it goes far beyond just a straight grantee grant or relationship or a direct relationship So to answer your your question directly your honor the statute empowers an agency involved to grant remediate remedial relief Doj here was undisputedly involved in the protected activity at issue But not the grantee under c1a grantee under c1a was as well because pikes peak was the employer of petitioners and maybe i'm not maybe we're talking past each other that's right thank you thank you counsel um counselor expired we appreciate the arguments and the cases submitted