necessarily arose at different times over those three years and more parceled out to different c offices around the country for processing the s c would let us consolidate them so the unsolicited e mail from of the president of the local union that handles the o g t t of the office of justice programs employees which contained allegations against  think if it's more than retaliation because there was evidence that this district ponty was engaged in sexual harassment and questions that they were going to be asked in the interviews and saying he could help them get promoted within your justice systems and does does that mr jeffress just not meaningfully contest that the other employees who were selected instead of him were or were much more qualified there doesn't seem to be any case of discrimination there's other ways of proving discrimination course by home and that's what we're left with here because there was no discovery that was how he went about  processes and so forth so yes that there is other evidence that we were able to gather that despite lack of discovery  there was discrimination involved or could could have been involved apart from any evidence of was he better qualified or not and then the understand there's no dispute that it confers and entitlement to the holder to be considered before other candidates and indeed to be considered before other candidates are considered and i see in the record where you pointed to evidence that that was not in fact he did but further than that it is the entitlement that once the person is is looked at if they are qualified they should be hired or that even a qualified person could just be passed over and put into the general pool well if the way it's a postal worker is that the person of the party consideration the selecting official was never involved in him in the selection it was it was the panel made the decision and is that is that critical i mean if the panel is the of the panel was there to make recommendations and i was not supposed to be considering other applicants so i understand that's a little bit of a different point though from your point that the selecting official didn't intervene at all so if we put aside whether the selecting official under her consideration could or could delegate to a now then your position is that that was always let's cross word to the cases that's that the kerry versus department of the army and pope and is it your position that the that the defects in party consideration are themselves also an adverse  forgot whether that the actual commission for which i was applying yes do you think that failure to give priority consideration is categorically an adverse employment decision or that it's just an adverse employment decision in this conte decisions of this court well written which forthwith evolve a time off award of is not a failure to follow priority considerations of the agency had already said it was going to for making the selection so it was kind of a given at the very start of the process or that the selection for this position this is the twenty  they were going to follow it for him as part of the process this lions good morning may please the court jane lyons behalf of the department of justice i'd like to pick up where the court's been just discussing the priority consideration issues in this case first of all  priority consideration cases on which my friend on the other side relies are pretty consideration from different agencies the agency in this case the department of justice has a policy its merit promotion policy has some provisions for priority consideration and appears at the policy appears at joint appendix page ninety five and it is important to understand that it's it's priority consideration it is not guaranteed placement so we in response to the question of what it what do you get you get and when it's normally being applied you get the st interview and the decision up or down on your candidacy before more things happen and that doesn't seem to be disputed at least that far haley himself says that that the party consideration candidate need to be considered on a decision reached before receiving information on or interviewing anyone else the problem here of course is that as as judge wilkins question just alluded to the system works when the h r department identifies a vacancy open about they're about to announce and they identify that sufficiently similar and then they can give the party consideration in the ordinary course that's not what happened here right in fact this time it was open and and the candidate was wondering the doctors were wondering why he wasn't given great consideration for a pro he asked he asked about the primary consideration and whether he could use it there was no dispute about whether the position was similar but that doesn't mean the agency conceded it similarity the agency simply said if you want to have priority consideration we will do that the best we can under the circumstances that we have and that is exactly what happened so it would be unfair or unusual to say that granting his request to get priority consideration and introducing the sort of procedural regularity to the extent that there's any and it's a small  delta the process hasn't gotten very far along at the time mr jeffries is interviewed by the panel and given his decision that he is not going to get the position for priority consideration and they go on with the process and he he claims and points to evidence  anding the lack of discovery that someone else was in fact interviewed before he was and the palace themselves seem to acknowledge that they received information about other candidate before they made the decision on him and in fact that they compared him with the other candidates which i gather in your understanding of how pretty consideration ordinarily works is not kosher for lack of a better  term it would generally speaking not be kosher because it would be following a different process but to the extent these are small a rick a regular procedural irregularities that are introduced by mr jeffries himself  and so what's your position on whether the record in fact shows that others were considered they were there at least there are applications of vocations were considered along with poor a decision was actually made are best construed in the light most favorable to jeffrey's to acknowledge that there are aware of other applicants and who the other applicants are let's face it this is not a big agency they know these people so they know who's available perhaps they don't they haven't said they sat down and go your position that he's not entitled to any discovery and and you my position is that there is the any discovering that wouldn't change the outcome because it doesn't cast doubt ultimately on material facts which is how did he do in the interview that he gave he doesn't offer a contrary narrative that he did a great job and blew that interview out of the park and that he deserved the job he doesn't make that it's a model premature for him to offer a narrative when he hasn't had an opportunity outline for discovery was offered and the district court denied it and we upheld it or you i mean and i'm not talking about marginal further discovery that someone must go where out of the box there's no rule twenty after discovery conference there's no mandatory initial disclosures there's no discussion with the district court where the discovery plan is should be and there's a motion filed plaintiff is great i haven't had the most basic information about cross examining these very people who i named as defendants before in the complaint i think maybe they might have a retaliatory motive against me and instead that just   strang versus u s arms control and disarmament agency from one thousand nine hundred and nine was saying that the desire to test or elaborate with the decision makers about their reasons in a vague way is is not enough to require discovery without no i wouldn't say it that way what i would say is that the world fifty six dollars d affidavit itself describing what particular discovery needs to be a deuced to to be able to oppose summ judgment has to be read in the context of the summary judgment opposition which is filed simultaneously and explains and identifies what the material facts of the case are through the way the case is being presented but here only just tell you what i'm contemporaneous evidence about what happened during these during my interviews and the other so i guess there are there were he did get some information about his and their jacket too so i guess the concern that i have is that when when a very subjective reason is given as them which is a nondiscriminatory  n it has to do with the nature of what happened during the interview and why is it too much to ask as an initial matter your honor i believe he does have the at least the interviews of the successful candidates this woman and this woman jones for that non selection and with regard to the subjectivity of taking off the jacket which which was perceived to be unprofessional that's only one of several reasons that that june one of the eleven memo and the july twenty nine letter to mr jeffries explaining the other reasons are more concrete if you will he gave incomplete or insufficient answers to demonstrate the ability to do the job he introduced a written document into the process he brought it in it wasn't a writing sample per se but he brought it in and it had some grammatical or spelling errors that were less than professional so those are those are more concrete reasons reed who was on the interview panel said his interview waxed depth and it was solely focused on work with the drum corps program and didn't translate into the full range of skills needed to manage state policy advisors she said he never mentioned any of his grant experience and this is a supervisory grant program manager position so it goes well beyond the professional attire issue that i would agree is somewhat subjective and if there were only that it would be one thing this is very much  forfeited the right to seek discovery in that case and here we have a very different situation i'm just i mean if you just zoom out and think about it the leader has a burden in this area of the law to prove provision of hundreds of pages of don't know and there is no dispute or that there were no depositions taken and that the key issue is whether these deciding officials recommending officials were acting in a retaliatory manner and we don't have much because they haven't been deposed but we do know is that two of them were the very were among the people that he had named not so long ago in any you know complaint that was resolved we know that later there was some pretty unprofessional e mail exchange among various supervisory officials laughing about the prospect that this to get rid of mr jeffries because and it was tied to his race in fact she didn't think that he had been qualified in the st place so we don't know whether this is all going to add up and indeed in other cases where my answer is rule fifty six of the federal rules of civil procedure places the district court in the pro in the function of having to decide that issue whether discovery is warranted that gives the court the ability to decide the issue and it would give the planet an opportunity to test all of my brain the testimony already entered period that's not what we have here we have a lawyer explaining what anybody who's litigated any of these cases knows which is that you need particularity what facts are there and white they are unavailable yet no discovery has i mean no depositions were taken but sworn statements were given and this court's decision and dunning says basically the hope for a perry mason moment during those depositions and the recreate of the moment by moment play by play is not necessary and disk and summary judgment can be entering cases with less than that record of that's also another case made in rashard and smith and i would point out that the knowledge alone of the officials and many of the officials involved in these applications were aware of of mr jeffries prior protected activity but jones versus bernanke he says that's not enough by itself to get you on to pass summary judgment this what you call the campaign to get rid of mr jeffries i think that's a little strong in light of the evidence but this mall play that's a little no reference no role in any of these selections so again not not enough to create a genuine dispute of material goldstein you've used your time but we'll give you a couple of minutes for