before discovery and which they're both significant substantive legal problems and procedural deficiencies which have resulted and prejudicial error and like to begin with i made talking about the main procedural deficiency and that is the failure to grant discovery before holding multiple summary judgment motions this year is a clear and manifest abuse of discretion should be noted that the court did not decide purely legal issues but rather these were at best hybrid questions of fact and long also be noted that plaintive did comply with the mechanism for him to request more discovery in these cases a fifty sixty declaration and this fifty six d declaration did comply with the procedur lesser when there has been no little troubled by the district courts not allowing any discovery but there are a couple issues in this appeal that appear not three need discover they could be just decided as questions of law based on what was a legitimate complaint your honor i believe that's a person for example the the exhaust in question well on the issue of exhaustion the standard is would a reasonable investigator look to the claim as arising out of the ground go see chart or did the investigator actually investigate those claims and here there is some evidence to suggest that the investigator did or should have investigated race based claims off the two thousand and eleven charge dr head queen of him to testimony and documents that explicitly said hey this is this case is about race that the v a there is a problem with discrimination against minorities and women that a reasonable investigator would have and so on the issue of whether it's if you look at it objectively as a reasonable and as any reasonable investigator in light of the charge  discovery details or that question well because there's also the other standard did the investigator actually look into it and so if you have discovery into what the investigator actually found and if he didn't actually investigate race but should the burlington national railroad standard when you have no discovery at the burlington court held that you don't need to be as detailed because you haven't laid the there's no discovery to lay the predicate or the groundwork for a detailed fifty is there was a complaint and a motion to dismiss and then an amended complaint and then another motion to dismiss and then i believe there was a second amended complaint a motion to dismiss on the basis of that motion dismissed the judge ordered rather than rule on the motion to dismiss you were  a complete blank it wasn't i believe a matter of several months to two perhaps over a year but because there was no twenty six f conference there could be no discovery without leave of court per pursuant to the the f r c  into the retaliation base claims e mails between the supposed retires into the conspiracy claims of same emails documents of of performance evaluations depositions of the part of the the actual alleged bad actors a dr wong doctor biter dr norman although the sorts of things that are necessary to prove up one of these very fact intensive discrimination cases these these these sorts cases are very fact intensive both this court and the california supreme court ruling on which is you know california's equivalent to title seven and said that these cases are proved by a boat load of covering i do not believe there was one pending discard there was a fifty six d and i believe that was the end of it but my knowledge of the record is not encyclopedic on that point but my understanding is there was a fifty sixty motion in a motion for reconsideration only on as to the judge's legal ruling for the one thousand nine hundred five claim do not believe there was a motion for reconsideration on the issue of discovery but even if this fifty sixty motion was procedurally an discovery of course adequate discovery is going to vary from case to case but one of these discrimination cases it cannot be the case of the answer the question what is adequate discovery is not in the a circuit has wrestled with this question in the will mar poultry case and it is a particularly good rule that in m s g is only appropriate before the close of discovery when a plaintiff could not articulate how discovery could cure the deficiency that gave rise to the summary judgment here  head articulated several theories that with the benefit of discovery could have him prevail on summary judgment it should be noted that several of the claims were determined on the merits the conspiracy claims the reprisal claim and the because because they reasonably relate to the two thousand and eleven claim to the c charge because he told the investigator you should look into my race related claims that's what this is all about and of course this is a continuing course of conduct over the course of ten years it's all the same sort of discrimination all three charges relate to the same series of events you know he he's are subjected to discrimination he complains about it he subjected to further discrimination retaliation first complaint he complains about it and he subjected for more reprisal for his race based complaints and he complains about in that third complaint is the two thousand and eleven e e o c charge and that charge is what gives rise to this lawsuit now regarding the question of whether dr head was impeded from participating in his proceedings or testifying doesn't record show that yes your honor because they attempted to impeach him they subjected him to treatment with the aim of impeding him from testifying and that conduct with the aim of impeding from testifying cost him harm even though it did not actually i cite but at the court this court has held that actual deterrence is not required merely tortious harm so economical or non economic harm as the result of the conduct but also like to note that  this court has ruled in david v u s that someone like dr had would not have standing for a witness in another claim yes yes your honor and i would just no that i believe that david the u s meets misreads the statute and that's based upon a couple of things the first is obviously a plain reading of the statute but namely this would lead to a kind of absurd result it would mean that the united states could be the only person to initiate a claim over testimony before the grand jury which is a protected class vacation under the section one thousand and five also if you look to the ku klux klan act which is the  it was raised once in this three year litigation in a footnote on the caption page of the appellant's opposition to the initial summary death motion there is no order in this case denying discovery  sure and that was only in that one motion and that was that first motion and i'd like to focus on the disc was pretty clear while it was as to that motion as a fifty sixty request he did not make a motion under twenty six d one in which he could have requested discovery or he could have asked opposing counsel to take discovery but other than that one time in this entire case which spanned three years a discovery request was made once and it was never raised again and when  the district court's order there was no mention of the lack of discovery in that motion for reconsideration it was dropped it was and as to that one fifty sixty request the only thing they appealed is as to that first order twenty seven twenty fifteen order and in that order our view of the order reveals that the government lost every single factual issue that was raised in that order therefore the apparent cannot show actual prejudice let alone actual insubstantial prejudice and for the and those in that first order in which the government prevailed were purely legal issues that were before the district court and the first  judgment that would likely be a question for the district court maybe you are you were there you were litigating that maybe what did did you suggest that there were no no tribal issues of fact on that motion likely in the motion yes we did but again we didn't and we had so many opportunities to bring these issues of the district court and oftentimes it just to court to aspire to a body issues before us and even with that initial summary judgment motion there was supplemental briefing and he has a district court had questions that he didn't feel that that the parties had addressed and then dr had described the information to be sought during discovery only in that one declaration your honor and why wasn't that adequate well we didn't get the gist of found that like the specificity but in addition to that the reason why it was an inadequate why wasn't adequate why it's not relevant here is because the issues that he raised in that declaration weren't decided and counsel cited multiple times of the burlington northern case but in that case it was because before discovery had him been completed the party that brought the summary judgment motion prevailed and here that's not true the part of the proper summary judgment motion on that brief in which the fifty six d request was made did not prevail we lost and what was the reason there was no  stipulations that were made during this case and judge wilson ruled on those i mean if the parent could have brought a rule twenty six d motion for discovery or he could have requested a saddest conference but the fact is after that declaration that was submitted in support of it and that's what the district court ruled upon but it's in all of the other opportunities that he had and including in that motion for reconsideration the appellant could have asked for a review of that discovery order and that would have been another mechanism to bring the lack of discovery to the court's attention but the reason why it was never raised again in spite of the multiple opportunities to do so including and i may add like in the reply brief app cites the office move that occurred but that occurred in august of two thousand and fourteen and the district court actually requested that after the two day evidentiary hearing he made a ruling on when the initial contact for contact was made but the court said you know what i'd like some more ruling on this exhaustion issue and it was briefed again and the palin oppose that brief and there is no rule fifty six deep request as to that brief and therefore it's waive discovery that's preserved for appeal is only relevant as to that first request that was made at the very beginning of this litigation and one of the reasons your honor i would submit why there was no request for discovery is because there was a surfeit of information in this case i mean even though the actual iau complaint the two thousand and eleven year complaint that's at issue here was a very limited and you know counsel spoke a lot about the race discrimination claim but he had brought race discrimination claims before against the v a but this time he did not and the person that they keep bringing up again and again is dr wong but she was not named as a responding management official in this case and there are no allegations of race against her at all so there are all claims that there are made up after the fact and you know it and they're moving very they describe this case is a gordian knot well if it's a court and not it's because they kept bringing in so many superfluous facts and allegations that didn't go to what was exhausted and what was exhausted the district court ruled on it took and the recent it was reported a long time is because there was so much information out there and we had to unreliable it was a be able to evidence fair hearing was what was its stated in the october twenty seven twenty fifteen order what the district court said was he said he's going to deny the government's motion on timeliness he's going to deny the government's motion the correct and the just court also said to have pellant you know i understand you have all these allegations that go back a long period of time if you would like to bring a claim a continuing doctorin please do so let's hear that at the evidence you're hearing as well and prior to the evidentiary hearing there was extensive briefing again and the parties submitted documents they they wrote briefs they said who no that wouldn't your hearing was for the district court to decide when and if contact was made so that had to do because because even though all of the documentation stated that the that the contact was made october  and again that was another opportunity for appellant to have requested discovery if he believed it was necessary but he didn't if you look at this three thousand page record you will find that request very discovery one time and you will find it to investigate a racist your nation claim this is when there's no race discrimination box checked on the complaint this is where the events that are alleged in the complaint do not have any allegations regarding race and this is after the district court had a long extensive interview with dr head where the district court went and pardon me where the the court did not do that what the ego investigator went through every charge that was at issue he says oh i think there's something you should look at i think that's very important as he did this all arise out of his race calling it with this whole thing is about no no no he only brought one race claim and that was in two thousand and four and that was it and that was against his then supervisor marlene mong he brought another complaint in two thousand and eight against this man supervisor the chief of surgery  not only raised one retaliation claim that he brings another retaliation claim against the chief of staff the norman in two thousand and eleven and that is the operative complaint and the reason why there's so much confusion is because around the same but you know we have requested you dish will notice in this case of that complaint because if you read it you can see that he's trying to bring the same complaints that he told legends u c l a actors against the viet and that's what was the basis for those motions to dismiss that would suggest that his claims at the v a were race based as well no your honor because they're not the same actors the only responding management official he checked at the v dr norman and he does not make any racial allegations against dr norman if you wanted to make a race based claim here in this instance he could have done so he could have checked the box he could've told the investigator he could have done all of these things but he did not so the only issue that was before the district court was the retaliation claim and other you know the exhaustion and time of his claims that came out of that are supposed to construe administrative charges for literally yes but here there's nothing more to that it wouldn't be that liberal you couldn't go to a completely different claim and the district court actually cited those cases why you couldn't because they're very discrete and this retaliation claim is discrete from a race discrimination claim and if you look at the charges that are brought that are at issue in this complaint those ten issues that of them have to do with race there is no reason why any reasonable investigator should have looked at any other issue and there's actually no reason why this investigator should be interviewed because the record is complete that affidavit is complete and the whole administrative record is complete that we've read your brief what is your home run case on this exhaustion point what is the best precedent that you would cite and most analogous to the anderson you have a minute thank you your honor i'd like to first state that i think it is an abuse of discretion outside of the district court to deny discovery outside the fifty sixty declaration is an abuse believe so because i think the denial of discovery is an abuse of discretion and of itself and also if i was a lawyer in that situation perhaps on the basis of the first declaration being are the first if you sixty  motion being tonight i would believe that further attempts would be futile because if the court has made its position quite clear there is going to be no discovery on these issues you know you haven't laid the groundwork for it what do you mean by i made it quite clear well that the judge's order the district  it did take seems like he took a look at each chunk of the case and tried to figure out the most efficient way to resolve it and in so doing and looks like there's a lot of  l there were a lot of facts that people were going to use there were some facts that are are not in dispute but i think the standard needs to be could there exist any facts in the realm of you know a potentially discoverable facts that the plaintiffs could use through discovery that would lead to the denial of summary judgment and i think it's clear in this case that those facts could exist and you have to look at the relative  ignorance of the parties or the relative access to documents and these sorts of cases plaintiff has very little access to documents and the defendant employer has access to all the documents i let you go over your h