honor is that when the case is closed if the district court judge has not indicated that the case can be reopened the case is close so you can you a if the case generally speaking of the case is dismissed without prejudice you should be able to amend your complaint however here and i've been i the case is closed there have been some cases in the district court of maryland where the court has indicated to int have to follow a motion to reopen the case there have been some cases where the district court has said if you want to reopen the case you have to leave to do so and generally speaking i believe that plaintive has a right to amend the complaint at least once right but what's what's the practice the district is this is a normal mode of proceeding simply to follow motion to reopen the case route what closing the case he says foreseeability i mean lawyer i would agree with that your honor here there is a mismatch between the court's opinion and its order and the nature of the court's opinion for close any opportunity for i would say when they're being consistent your honor the order here in the specific a should control which is which said that the case was closed and that the case was dismissed whereas the opinion said that the case was dismissed without prejudice and generally speaking a plaint e should be able to amend a complaint that was dismissed without prejudice but mr ping did not have that opportunity to do so here when the difference that and the memorandum opinions that the complaint was dismissed   what we're saying here today your honor is that we believe mr pistole yes or no answer to that question either you're standing on it or you're not and that seems to be a critical distinction if you're a footnote in the circle when a brief footnote one says nor does she conceded not that he could not cure his from point one and that's somewhat what prompted my question i wasn't sure what you meant nothing that mr bayne would plead with a good faith basis that can make the complaint more plausible ok mr being played that he applied for the job with brief and did not disclose his race that said j sixteen he pled that he was interviewed in person by mis ray is not mr wheeler he pled that miss eager miss mrs scott was so eager for him to begin that burgo asked if he could start his petition early and he put in his two weeks notice that his of his farms lawyer he was offered employment contingent on successful in passing a background check by just the facts which he passed and on his st day of work when mr wheeler walked into the room and saw the stripping sitting there he went and conducted a google search of mr bang the only additional facts that mr bang could add to make his claim more possible than it already is under good is within the control of the defendant and we would need discovery to elicit those facts one final point i'd like to add is that the district plant mr bayne we have to amend his complaint and while generally speaking the district court does not have to do that the district court in good vs c b l a s provided the plaintiff with a roadmap and provided the plaintiff with additional allegations that they may have is there a certain more there's a difference in construing a complaint liberally and you relaxing the requirements that a sufficient is the fact that he is pro se important to your argument or you in other words are you saying we should construe what he said a certain way because he made a pro se pleading are you saying that whether he was pr and thirty four i can find nothing other than my possibly unexpected physical appearance as an african american male to explain actions of race and sex discrimination initiated by mr wheeler whose actions clearly fell outside of the established hiring process is so i would argue that here mr being dead sufficiently state a claim of just for treason treatment based on his race as a black man and he's certainly stated his that would be the case put excuse me sufficiently pled to race discrimination case at this court she can share all of the reasonable inferences that can be made in his favor in liberally concerning his complaint and that is what the district possibility and so on the specific facts it's our position that he did meet basic plausibility in what he pled and because this is a very unusual case and it's a case that implicates implicit bias we  understand that in these cases as judge davis discussed in woods there is a case there is the possibility for cases that implicate implicit bias to lose at the motion to dismiss stage because of the lack of evidence and objective evidence but there is an issue in these cases where a judge will substitute their viewpoint of the stated reasons for chairman nation instead of using the controlling possibility standard and it's our position we're trying to understand what makes this unusual for other we have from other argument is that your honor on the specific facts the context and the timing in which mr bangs terminations arose the complaint is plausible this is different from a case like good versus c b l yes where the plaintiffs there were for the employer for twenty five years mr being was employed by grieving for mere hours so there is certainly information that he could have added to the complaint if he had more time working there as an employee but he did not and the additional information that he could add would need to come out during discovery and right now that information is in the control of proven me with my remaining time i'd like to finish addressing disparate treatment mr being also perpetuated create implicit bias which is what happened in this case and mr banks sufficiently pled that as well to what your definition was implicit bias was defined in words as unchecked racial stereotypes economy and it's implicit because it's unconscious so we might not know that we have these unchecked racial biases but they might come out every day our interactions everyday conversations the stereotypes that we form about other people and mr being played that unchecked implicit racial biases me and led mr wheeler to conduct the google search i just want to know prayer honors that the issue in this case really is what led to mr we were conducting the google search and that's why we play this court to apply the promise of words that when a judge substitutes their viewpoint for why someone was terminated this court will have jurisdiction because it's not a fun award or but you're saying also that it can't be remanded it is a request that this case consistent  with prior decisions not be remanded for further proceedings so you're basically saying and that would leave this plaintiff without any remedy to review the district court's order is that is that the effect of what you're arguing yes and i'm happy to address this issue now since the courts brought it to attention but we received a good decision in two thousand and fifteen following a number of unpublished decisions in which this court dismissed those cases and some instances remanding and other ends to says not over being one i believe for example the court then i believe felt incumbent to publish a decision to your honor i believe two things and make a statement not likely the representation that mr being is prepared to stand on his complaint as it is without amendment seems inconsistent with the arguments in brief court pointed out footnote one and supplemental briefing mr bangs made arguments that your respective of what this court does whether it even affirmed the dismiss that he is prepared to reserve his rights under rule fifteen to move to reopen the case to a certain new claims a section nine hundred and eighty one dollars claim that was not specifically stated to a ege new theories of liability including disparate impact well if we have jurisdiction then we go on term the merits of the deal i mean any of that really be relevant i only say that i say the distinction in channel is important because number one mr bank has signaled that prior to today that he does not intend to stand on his complaint was drafted but in shall standing on  complaint was very clear at the district court level we know that that was the secretary of labor who affirmatively stated at the district court level that she refused to amend and the reason for that was institutional  on opportunity to be reviewed your honor i respectfully say no and i believe that if the district court puts without prejudice in the sugar rule that says two classes of cases so dumb those sugar if you as i read it talks about the dismissal of a complaint an he or in then it says it adopts the rule that some courts have that the dismissal of a complaint as opposed to an action must be reviewed on to the circumstances to determine whether the grounds are such that you can not i mean here we have it middle of a little bit difference between that opinion and the order but the orders of dismissal of the entire action so i'm not sure don the sugar doesn't if we plod on the sugar holding that would make this final in and of itself two points to that and domino sugar a quarter concluded that it was a pure legal procedure all the fact that it could never be cured but with respect to the dis of the action yes or a good case addresses that squarely on point essentially says because in that case it was a dismissal of the action the court says we are not going to hold district court judges to the syntax to the technical oversight of syntax between dismissal of complaint and dismissal of action but bottom line was when the complaint was dismissed  with prejudice and even in good the court used the language the action is dismissed in its memorandum and in good court still said that that's a distinction without a difference for the purposes of our and number two even even if it did expand or the dominoes sugar holding it in one of the critical things of the good that there was no other indications and the court addressed that issue and said we find that to be a distinction without a different about the instruction to close the case does that not signify anything now and we have a case map penn national team out i believe this court's familiar with that was speak with authority as to the legal effect what i can speak to generally in practice with regard to administrative orders that are entered silent following a minute detail memorandum opinion that dismisses an action without  without prejudice is you're going to see a wide variety of language there i think that our view that there is inconsistency between the order and the memorandum of opinion that in my humble opinion is a stretch i think one was silent on a particular issue and i think that requiring that level of again syntax or consistency for our district court judges who are managing those or others who are entering those administrative orders is is a significant burden take heap upon them when in this case you have a nine page memorandum order from a judge who considered more than are approximately one hundred pages of material that was submitted by mr bring in detail analyzed those allegations and specifically found specifically found allegations that were deficient and allegations that were contrary to his cleaning elements but before you get too far away from that issue if they look different little bit if they dismiss it as a order cases there are there are a number of cases that have given the plaintiff a leave to reopen the case question is this at the time mr being filed his appeal he it multiple times referencing the seventy and her understanding with his plight having being represented by counsel at that phase i believe the burden is not on the district court judge but is on the little bit to seek clarification through a variety of means those means exist for attorneys and litigants to get clarification before a letter acting a remedy that may have very serious consequences and that's exactly what happened here ok not to reply on the ground but so much to us won't work time wa they some councils representation this case is different from jail this case is different from challenge because the district court level the secretary of labor says i shall not amend she affirmatively made the representation right but give the opposing counsel's made that mr being is prepared to live with the pro se complaint he drafted and never move below for any amendment to add to claims or the theories of liability that he has forecast that he would in his briefing that i believe you standing on his complaint in accordance with chap but i would say i would agree with that position your honor but that wouldn't necessarily require him to do what he has said and to made no further amendment to move to to do nothing more with that complaint but to proceed with discovery and further with the district court on the merits that cases there's not an opportunity to a man and then you agree that certainly do you know are ok and i take your point i have not much more to say with respect to as i understood the representation made by your opponent the complaint alleges that we were we were did not do the google search until after the new rugs and akki by going back over the complaint the nd paragraph quote i was met by to brief the employees who had not participated in my application process mr charles wheeler and mr richard crowder mr wheeler was introduced as a security architect for preview and mr crowder that as a director of technical services both ribault employees were caucasian males within an hour of orientation i was pulled aside by mr wheeler and confronted about a baltimore sun newspaper article pursuant to a google search which sensationally reported i was the subject of a criminal investigation involving a shooting now one could read into that that mr wheeler saw him and then did the google search but one could equally read into that as part of breathable as normal process mr wheeler did a google search of all employees when he came into the office and then later conferred with others and then approached mr being i don't think that that is a clear statement that mr wheeler saw him and ran to his office and conducted the google search on because it's ambiguous at best  so you go into the district court's opinion or you in the complaint and in the district court's opinion and she cites to the portion of the complaint  you give us a page when you get to it we'll her establishing that he was terminated because of his involvement in a shooting at cit the veracity of which being firm so even is the google search was performed the termination and virtual security the security architect found that incident to be disqualifying so so if under these if we were to infer that the google search took place after he saw all encountered mr bang for the st time and that in it if that's the case that the issue i think he would say is made the ultimate terminations was because of the news accounts of the shooting incident but the thing that that calls the additional research or investigation was race pace if if that's true if the additional investigation was race based and in the old time that terminations was race neutral what do we do in that circumstance well again to answer your question if mr being is standing on his that he doesn't know whether the google search is part of a standard practice or whether it was particularly to him he has not alleged that he was singled out because of his race he says he doesn't know including one without remained i believe to protect that salutary rule enshrined in good some consequence must and you are for those who have not yet learned the rule even if that was told is harsh a role that is ignored or disregarded begets more disregard and for the court to have taken the time and felt that it did and only to see more of these of kele's i believe respectfully has the danger of eroding that rule to the point that it i briefly want to respond to a couple of questions and points that a person counsel raised judge traxler you have to reopen the case and it's not purely administrative motion maybe didn't deny to answer your question about what happens in maryland when complaint the inference there is that mr wheeler upon seeing mr being regarded listen whether he saw mr bang during orientation or within an hour when and conducted a google search of him because he was black and that's what mr being played in his complaint and he possibly allege that the search was motivated by the discovery of his race that is what mr being played time and time again has complained last  posing counsel said that mr think confirm the terminations was because of his involvement in the shooting the opinion excerpt that he read stated exactly what judge davis warned against woods where the him that he went to the security director and misguide and they determined that he was unfit for the position but the district court stated that because of that e mail mr being affirmed that he right your honor there's nothing in good faith that mr bank could act his complaint at this time and it remains a position that his complaint as it is is possible and that he pleaded sufficient factual allegations about r either grounded and explicit racial animus or bias and there are no further questions your honor we respectfully request that you are st the court dismissal and are made the case for further proceedings thank you thank you very much we