the suggestion that the ongoing litigation either was already resolved which it was not or was immaterial because it is not as a matter of fact the because we are the mission that has been a war for nearly two decades and the basic purpose of the statutory is to ensure that service members who leave their civilian employment and asked the da to initiate that investigation so it isn't to the office ever sponsor professional responsibility d operating investigation soon of the placement of this black berry or was well within their rights that is not what was going on here what was going on here was that the  then if the agency really wanted to question then subsequently they did they could have called her in for questioning that did not happen as a matter of fact to as derek returned from active and was available for a sworn deposition the agency could have done so they did not instead they sought to question objections to this in other words i don't see any reason why he couldn't go on and been minimally cooperative and investigation especially since appear to be people whose all whose testimony and interview would be among the most relevant to carry out the investigation if you don't get the authority to have him go and testify in an investigation with the da it also didn't have the authority to deny him from doing so under the statute because this type of activity was not authorized duly authorized by law within the confines of his duties as a coast guard officer as to the fact that  louise raised the issue your honor i think it's important to point out that lisa didn't cooperate with the interrogation that she was subjected to did she was asked forty any person that being buried under this chapter and hoke testifying or otherwise making the statement in or in conjunction connection with any proceeding i think it's important to appreciate that the questioning that was going on was related to litigation that was ongoing and was brought there and the attempts of the each inzy here were to circumvent the investigative process of the litigation that was ongoing and run roughshod on it and get straight to derek and louise of but compelling them to a case in which two t e a supervisory employees one a supervisory drug enforcement agent and the other forensic chemist flatly refuse to cooperate with an internal investigation by d a s office of professional responsibility or o p o are which is the da equivalent of a police force of the internal affairs like every other da employee who has refused to cooperate with an internal investigation and comparable serp circumstances who didn't simply resign plaintiffs were fired and even more egregiously as this court pointed out the internal investigation here is an investigation the plaintiffs themselves as opie are to commit they told opie are that they had discovered a da issued by ferry on their vehicle and that they believe someone at the da with the legally surveilling but then after initiating the investigation they did everything they could to impede the investigation until ultimately the da fired them for failure to cooperate after months of discovery in which plaintiff tried to uncover any evidence whatsoever of an illegal motive of any kind for their terminations the record demonstrates  in fact the district court correctly held and plaintiffs have not challenged in any of their briefing that every single one of the facts identified by defendants and their summary judgment briefing including those facts regarding the discriminant nondiscriminatory non retaliat reasons for plaintiff terminations was undisputed in short the district court correctly held that there is simply no evidence that any retaliatory and met based on you thera or title seven protected activity had any role in plaintiff's terminations plaintiffs were fired because they were law enforcement employees who refused to cooperate with an internal investigation i will address plaintiff's arguments regarding the the address plaintiff's argument that their terminations for retaliation for title seven protected activity st and then their claims but their terminations were motivated by their use their activity then their argument that they were somehow entitled to an evid ary hearing despite the fact that they did not just any of the material facts and finally i will address plaintiff's arguments that the district court erroneous lee who did rony asleep for butted them from reopening discovery months after it  that there terminations resulted from any title seven retaliation st and foremost plaintiff never even contested summary judgment on their title seven terminations before the district court and this court should not consider this claim for the st time here second plaintiff never identified any evidence showing that their title seven protected activity had any role in any just for treatment they received in their terminations and in fact the record demonstrates but every t e a employee who refused to cooperate with an were also held to the highest misconduct mr ball going to explain but supervisory employees stand as an example to more to your employees and if it does must be required to participate in it and fully cooperate with an internal investigation although plaintiffs now argue that the investigation itself with title seven or tell ethan they didn't argue that before the district court and there is no evidence that they have identified even on appeal that the title seven investigation was motivated in any way by their title seven for such an activity as such because the plaintiff the fail to establish that title seven had any role in the investigation it would have terminated her regardless of the protected activity here mrs kit lewinsky did not engage in any usera protected activity although they now try to argue that her opie our interview is protected activity it is not kalinski mention discrimination against any military members or retaliation or userra or even identify to any claim that she or her husband had brought under userra mrs catlin's keys refusal to answer questions simply is not protected activity nothing in use there authorizes an employee to use the statue as both a sword and a shield as the kill and keep it here they cannot request that the agency investigate potential wrongdoing that they allege had she refused to acknowledge that she had read forms provided to her advising her of her rights and responsibilities in the investigation she refused to tell the investigators what she personally had done after discovering the black berry she refused to tell the investigators what her supervisors had told her to do regarding the black berry she refused to tell the investigators what the department of justice office of inspector general had told her to do regarding the black berry she refused to answer whether opie are had told her to return the blackberry and she refused to return the blackberry after both her supervisors and opi are told her she had to do so although she refused to respond to these questions on the basis of attorney client or spousal privilege no one could have believed that either of those privileges applied to these questions which related fully to what mrs kalinski had done and to what people other than her spouse and her attorney had discussed with her moreover there is literally nothing in any of these questions or anything in the investigation itself that suggests that the investigation had any basis in an attempt to discover anything going on in her litigation which at the time was not even existant the usera litigation had been dismissed before her interview and had not been reinstituted at the time of her interview moreover none of the questions that they asked her had any role in trying to undercover what sort of litigation strategy was or anything along those lines the questions make clear that the investigators were trying to figure out what had happened with the black berry and mr boeken explained that he terminated mrs kalinski because she refused to cooperate with the investigation he explained that her job serious and seniority required her to be held to the highest standard of conduct and that her misconduct threaten the integrity of the office because internal investigations are vital to maintaining that integrity internal investigations are the primary way that a law enforcement agency in st the integrity of the law enforcement actions they are critically important to the mission and planets were fired because they flatly refused their obligation to cooperate with the investigation and establishes that the government must establish that it would have terminated him regardless of that activity here mr catlin fee was terminated for refusing to show up for zero p r interview after opie our had expressed the coronated with the coast guard to ensure his ability to attend consistent with his military duty critically as this court noted there is nothing about mr catlin ski's military duty that precluded him from attending the interview the coast guard had express easier for head but he didn't even make that op option available to zero p r he testified that he just refused to be interviewed and the record demonstrates that it's well mr catlin see plainly remained in ca employees well he was a military da handbook explained that he a employees have an obligation to work with both the military and that the e a in good faith to ensure that the needs of the agency are met and federal regulations for federal civilian employees on active reserve duty also a federal civilian agency can raise a need for a particular civilian employee within the military with a with the military branch that that in place on active duty with and the military and the agency work together to work it out that's taken too much military leave like hate and fear for if this is the case where mr catlin ski unilaterally decided not to cooperate with an internal investigation that he and his wife had initiated after the coast guard had and then we're trying to use you fareed to preclude the investigators from taking the most critical of interviewing the most critical of investigating theft interviewing the only two known but misses in the circumstance job serious as a drug and force an agent and the fact that he was a senior supervisory employee required that he be held to the highest standard of conduct which required him to participate in the investigation and because plaintiff fail to contest the fact refused to participate in an internal investigation were terminated or resigned while their terminations for pending against plaintiffs admitted that fact a summary judgment and do not challenge it here as such the course of the for summary judgment a judge crowed you have any questions linsky initiated investigation and that both she and her husband refused to cooperate the actual factual predicate is that there was a series of cases going on against the da by the could lindsay's including you sara and he claims when the black issue on whether or not a cellular telephones placement could be retaliation said that that right arises under the constitution for any citizen so mistakenly asking went to the f b i the f b i didn't even respond he went to the office of inspector general was told they were going to investigate then the inspector general's office their special agent in charge called herman whaley told him about the phone and the da began looking into not how the phone who put the phone in the complex car but how the discovered it which is fairly clear from the investigative questions that were asked the significant issue that's missing in the government's argument is that they could linsky were complainants against the agency itself they had a series of administrative claims going and they they had reported the agency's conduct to both the f b i and the o i j that is why we wanted to talk to the inspector general himself as to how this case got transferred to the d a because our presumption was that that was done by herm linsky how she discovered the phone what her communications with the a to her attorney were what her communications of the government just admitted with the office of inspector general war which is actually protected activity in of itself so when supposedly reported this she reported it to a supervisor is a friend in the agency had already begun investigating it independently so the question then becomes can an agency use its quasi law enforcement power to force witnesses in an ongoing administrative case to come in and disclose the contents of that administrative investigation the contents of their discussions with their attorneys and the actions of their attorneys to an agency and we think that under five us c five  five and under the statutes that exist the answer to that is no the nd thing is you sarah is not dependent on the geography of mr could linsky north depending on the voluntariness of his cooperation the government continues to assert a false fact that the coast guard agreed to make mr could linsky quote present all that happened was two d agents went over to the coast guard represented themselves on a sheet of paper as coast guard employees and were given authorization by a lieutenant so it can be a real problem if all this is an absence of integrity or law breaking or underhanded conduct within a law enforcement agency my general concern here is that by raising one of jackson after another you almost tie the hands of law enforcement in being able to root out ones which i think we know that sometimes these agencies become very insular and they need someone to take a broom to them to find out what's going on and you're coming close to saying that they can't even interview the people whose whose comments would be the most relevant i don't think they were trying to broach any spare also privilege they were simply trying to find out court was behind the blackberry and you know why this was there which she wanted looked if i may respond judge i don't disagree with that which is why we wrote letters to the da saying the the da attorney when we wrote her and questioned her about this and what we should do she said everything needs to be litigated within the administrat process so that's precisely what we did when gary could linsky was questioned we did not object to him being interviewed we have jeopardy of being called off active duty without approval from a supervisor and we objected to his attorney not being able to be present during that questioning because mr could linsky already had litigation against the agency the way to resolve this amicably and reasonably would have been for the agency to respond to that request and say mr burns please bring your client over because we know he's in an administrative climb that would have not impeded their investigation in any way shape or form if lisa could linsky had been able to have me present because they questioned her while her husband was in a proceeding in san francisco in which the the the senior most v a officials themselves testified including michele leonhart that agent consciously chose that date because i was not present and had i been present we could have and we could have addressed all of those questions that were answered which we did when we were in front of mr baldwin the issue was not whether the agency can investigate the issue is when a litigant has ongoing administrative claims or judicial claims against an agency can an agency use its law enforcement authority to haul that witness in without counsel and simply pepper them with questions about their underlying allegations you bet whatever whatever it might be wonder if we're not wondering fairly for a feel from the subject a complaint which was that there was some hell anti military animists that motivated this whole thing i'm having difficulty well obviously you've got problems with the agency you know a fair enough but after those i don't understand how anti military animists even gets us into that it seems to me that most of the problems with the agency or whatever they may be are somewhat far afield from the uniform services employment act and well it's been a hard time seeing as there was any anti it didn't grant him access to leave his post didn't direct them to leave his post and when i wrote to the agency and said look he's doing military service you know can we work this out they did not respond at all lost in this that there were real attempts to work out with the agency a reasonable mechanism for them to be able to interview that could lean ski's while preserving they could linsky is right so that the agency couldn't interfere with discovery or the administrative procedures litigation against them and that would have been so quite simply to have need present the problem with misty could linsky is that when he's on active duty service it's the employment and reemployment act because while he's on active duty service the statute says he's and i don't guess lisa's even in the military is that there were no rules no steps here that same to lead toward cooperation just a flat refusal they just the problem is the record suggests there is just an absolute stonewall you know the judge judge i think and i'm over time so i want to be able to answer this question there wasn't a stonewall if you look at the record the government attorney pinkney told me when i protested these actions that all of these matters had to be handled within the administrative case we filed motions those cases we would have presented the blackberry to them in the course of discovery we would have to answer questions at a deposition we would have returned and he answered questions with the kid when he so long as i could be present so we could make sure they were not invading the administrative proceeding this is a simple resolution to this which is the thing and we have a law enforcement agenc and whatever problems that these two plaintiffs head with the agency it's just hard for me to connect it  up there's all this back and forth but it's hard for me to connect it up to the basic allegation other complaint if there was some anti military agents anti military animists of food here because of far as i can tell if they're they're following they're fairly standard set of rules dismissing somebody who refuses to request an investigation and refuses to cooperate and that's it seems to me that agencies proceeding according to standard procedure but i just have a difficulty locating an over your time but i want to make sure that you get your argument also why don't you give us a brief concluding state of ok so that you're honest i fully understand the view of the court but there are factual issues that are in dispute st of all over whether the coast guard ever actually granted any authority for mr lindsey to leave that's a factual question we disagreed with and then the nd issue is the the understanding premised that we have this the statue protects the military status of mystic linsky so anything that interferes with that military status of those military obligations violates usera and we can think of anything that would violate usera more than an agency moving over and on on less than twenty four hours notice demanding somebody come over the next day and be in sorry it was mr burns of thank you and i'm going to i ask george floyd do you have any questions you would like to ask