and all of those documents you're saying were attached to the point this complaint in the federal election that's correct on it so the the diff the the the initial and the power was lost most of the documents are being talked about where that's they're not complete yes your honor that's what that's what i'm trying to explain that what you have what reason what evidence do you have that the ultimate production of the documents was not the complete e e o c files which yes your honor thank you back to the first thing you said you said that you see cases under four are different than other cases isn't the main way they're different is the title seven prohibits the e e o c from making public and under title seven is your honor mentioned we are required to keep our files confidential we release a charge file to either a charging party or a respondent once an action has been initiated warrant charging party can ask to obtain a copy of the file within the ninety days after which we issue a right to sue notice we complied with that here we did produce the files a little bit late but we did produce them whence the plaintiff asked for them but i'd like to return back to just counsel had a lot of talk about whether we made up the file the two hundred thirty five page file whether we omitted documents and before i don't want to put the cart before the horse i just want to remind the court that the plaintiff did not exhaust her administrative remedies as to that so we produce the documents on august third two thousand and fifteen said here are the two hundred thirty five documents the letter that we sent producing those documents is in the record at page eighty two and it states on pages two and also on pages for that the plaintiff has the right to appeal but the peel has to be made to the office of legal counsel at the e e o c in washington d c if the plaintiff wants to contest the disclosure of the documents which is what i hear plain just counsel doing today as he did in the br which is he's arguing that we made up the file that we've put in documents as i understand it but that had to go through administrative appeals process and the plaintiff failed to do that so that doesn't restore the jurisdiction of the district court the district court here la because we gave up the documents before against jurisdiction to the district court to order documents to be produced to enjoy new withholding of documents so once that got off the table that the court lacked jurisdiction but if we want to talk about the substance of it judge fact did consider the allegations of collusion with the defense counsel for the hospital and to consider whether the e e o c had made up the file and he looked at the record and he looked at the declaration from our ego see employee who just said that the file was lost temporarily and found in found that it was completely speculative that we had made up the file there's no motive for the e e o c to make up a two hundred thirty five page file and that there was nothing that was wrong here  district court i mean that's a separate question as i said that the point of had an obligation to appeal it to our office of legal counsel before bringing that to the district court so that's what should have happened here and that's just why there is no jurist there was no jurisdiction there's nothing to talk about that in our brief didn't i could submit a letter after the argument talking about that but it is true we receive between seventy five thousand and ninety nine thousand charges of a year so what we do in investigation for any particular charge may be a little bit it may be a do that but again the question really here before you today is whether the district court lacks subject matters jurisdiction and whether the court abused its discretion in refusing to award attorneys fees deplaned us counsel and we submit that that was not an abuse of discretion spot said that i think the judge spots order properly recognize the standard under foyer is substantially prevails and the statute does state there that a substantially prevailing point of not just wins in court with a judgment but can win if there warranted if that were the standard then the statute would say that if a complaint is filed in the agency produces an award fees but it substantially prevails and we the vermont case and also he cited i think calhoun in the pretty good case that  a delay in producing documents isn't a did the district court apply that standard in other words is this a case i think you'd be clearly right if this were a case where the district court said i've looked  written agreement a consent decree or a unilateral change of position by the agency rather she obtained her case file because the e e o c was able to locate the file and voluntarily decided to furnish the case to the plaintiff that she has not substantially prevailed within the meaning of four there are other cases also that suggest that there is there should be an opportunity for some kind of factual inquiry into that is it enough that you send an affidavit and then the judge credits the  affidavit or whatever possibly very weak inference there may be from the fact that it's rather strikingly coincidental that immediately after their service the suit is when they fi find the documents i can't think of any authority in the statute that says it has to be a factual inquiry we submitted the declaration and we say it's a law that the there is a presumption of good faith i think in the declaration from the agency and what you're getting at is is and it funny that you know you found the document two months after the complaint was filed and certainly maybe there is something to the squeaky wheel about finding a file once a complaint comes in but our new york office alone receives over seven hundred for  our requests it's in the last fiscal year we receive seventeen thousand for a rest requests a year at the agency so i don't know the record doesn't reflect exactly where the file was we actually do still use paper files was it stuck in somebody else's file was and somebod desk was on vacation i don't know but you have to get to causation and for the standard for when the agency changes its position voluntarily it has to be not insubstantial i think it was an insubstantial thing and there's no evidence that the filing of the complaint made us change our position our position always has been that she was entitled to the file and we just temporarily misplaced it we say to cases saying that that is not enough for an award of attorney's fees is it is it the agency's position your position sees position that i just want to make sure i tease out the jurisdictional argument that the district court was without jurisdiction because also not only because it was moot which i think is one argument but because the failed to exhaust administrative relief i'll have you tease it out i think our argument is once we produce the documents then the jurisdiction basically evacuated because we're enables a district court judge to by appealing to her office of legal counsel once she received the file is that each position that the district court even if that were before it and laid out would not have jurisdiction to decide that without going through our office of legal counsel yes but of course  brief also did address the merits of that argument there would be a question i suppose whether that's truly jurisdictional model exhaustion or remedies requirements are jurisdictional as opposed to claim processing rules but i take it just again to make sure i understand what you're saying is this suit demanded the production of the files the files have reportedly been produced that's the end of this lawsuit if there's going to be another lawsuit judgment grounds a drink capture more of i think some of your concerns about the complainer what we did here the o c did below about getting to whether we produce the file and whether we collude with defense counsel to keep the file from the pla