case we were never allowed what you might call the regular civil procedure before trial for some reason the trial court would not allow us to do any discovery no subpoenas no depositions nothing trial court would not any requests discovery we did indeed we filed a request and but after the briefing on the merits of the issue of why the case was dismissed or a i would describe this during and my requests was simply this that we should be permitted to tell the the claimant a theory of our case we never really had a motion in front of us saying you don't notice a motion like a normal motion if you don't provide evidence to support your claim your claim will be dismissed oh motion to dismiss doesn't always doesn't usually involve evidence it is an attack on the legal theory this wins this one gets to some factual questions but i'm not sure what factual question is the evidence or the discovery  proposed how that speaks to the factual issue before the court here's how it would if i may here's here's the offer proof we offered a trial court my clients are among people who are in the category of advocates for the mung people they're trying to help what's going on and still going on in laos right now the basically the people are being slaughtered there in a very terrible way agent decker of a t f now a t f he comes to my clients and says to us government wants to declare a war against laos and we want you guys to help you know my most my clients have had parents lost fighting for the u s military they were hired by the cia so when an agent decker came there you know my clients are like are you guys finally going to do something against laos because what the laos government the communist government has done with among peoples off this is this sounds like a defense to the criminal case though and not an explanation for why the criminal case was dismissed this is the reason this is also an often in the current action for most of prosecution the the inference what we would call the reasonable inference from our evidence is that the u s attorney's office agent decker knew that there was a scam played on my client this is not a mistake this is not a cheat i thought you were telling the truth this was a scam where a government agent lies to a group of among people and says the u s government backs this case no i mean i appreciate this is not  defense what you're basically saying is that they were working there were thinking they're working as agents of the government that might very well be the defense but right now you're faced with a situation in which the district court executing essentially a command from this chord suggesting that you needed to look at the militias prosecution you needed to find out why there was this most so whether it was consistent with guilt or not issues an order requiring a response from the government and then you don't reply and the question is i appreciate that you have some issue in regard to the process this is not exactly summary judgment appreciate that but i guess the first question is why didn't you reply what was confusing about the order from the court which suggested to you that you need map reply what was confusing to me a couple things first of all the court never said i'm going to hear from the u s attorney's office we're going to receive a you could easily describe it as a self serving declaration from one side of the case and we are going to make a ruling about the merits of the case based on that one side i can assure this court hasn't just one side  a briefing schedule that had briefing from both sides and said that it would consider declarations and other evidentiary submissions no that i did not get that at all i can assure you my idea was this was more like a discovery device this court had reminded when you say you didn't get that do you mean you actually were served with this or do you mean you didn't understand it i don't think it called for a regular briefing schedule it was more like the u s attorney needs to respond to this issue and the u s attorney did then requested the right to do discovery said it wasn't there a deadline for your response to their submission well our response i would like to say is for us of all when the u s attorney submitted at the corp i could see from it by the face of it what they were saying is our case was riddled with a bunch of lies that was kind of at a reasonable inference from it and we of course allege more or less that in our complaint and my concept was let us do discovery us treat this as a regular case and we will show that there is truly facts out there that we have that the court should see that we were never seen and we were never given a get the notice that the notice said the government is the file the brief no more than ten pages on such and such a date and then you should respond you may respond i think they said you may respond by such and such a date with a brief no longer than ten pages did you not get that notice or for some reason did you think that you did not have to respond to the submission that was made by the government my concept was this my response is we need to treat this case like a regular case allow us to do discovery allow us to do just the regular things you do in a case allow us to tell you we're going to do what you were going to do and didn't really care about the order issued by the district court i did not mean that the court's going to do something the court set a schedule and you got the idea we're going to do this like a regular case so i don't care what the court says is that your response to well it was a request i don't order anybody i say may wait so i had so you didn't you didn't as may we within the time period that that order sat well we had  asked you know normally on a summary judgment which i really think this is kind of like both sides have a notice of hearing you get the benefits of that the full opportunity to conduct discovery i'm looking at a case i  convert pheno to common rule of course but but the court issued an order that that set a schedule and said that you had ten days after the defendant's filing to file your response so when you received that you could have said well wait a second this is need time for discovery but you didn't do that you waited till after your ten day deadline and then asked for discovery is that right well i would look at it this way though the i just did not see that as a motion for summary judgment and the reason i didn't there is no notice of motion and i can assure this court that this is done on this is sort of like a mini summary judgment motion there is no separate statement of undisputed facts there is one statement from the u s attorney there is no doubt that the normal safeguards of a summary judgment just weren't applied here and the burdens the burden shifts essential to the bridge was made clear by the district court that the burden shifted to the defendant which was consistent essentially with the burden supplied on the summary judgment and that's why  least to some extent the argument that this is sort of subtly transitioned into a summary judgment motion seems to be consistent is not well what i would submit that happened here is an unnoticed motion for summary judgment was filed to a sponte from the court without permitting me a new discovery whatsoever without giving me the normal time to respond without giving the normal due process allowed and i cite the cases in our brief and say you're not allowed to do that that's an abuse of discretion and if that the court didn't it seem like the court abuse its this question right there in just doing that procedure to shift the focus of your time is just short there and in that's the favorable terminations the circuit said in its opinion in this very case that you have to be read the entire action must terminate in the plaintiff's favor essentially as i understand it in the criminal case a number of counts were dismissed yes for a lack of  notice in violation of due process clause right they were not dismissed because of innocence they were dismissed because of a technical due process issue so if that is the case and those those counts were never reinstituted they were terminated for that particular reason doesn't that mean that there's no way you can show that all of the counts were favorably disposed of consistent with innocence here is this impulse response or that  these kind of technical issues that you're raising like this excuse the basic thing that happened here these folks came after my clients with a charge that they tried to wage a war in laos that was a charge they made that was a charge mr decker created by coming to that so that charge was made was filed the u s attorney couldn't sustain it now they were given leave them in a criminal case so i'm sure if they had other facts they would have done it they were unable to obviously what you're suggesting is that you don't look for the real reasons for terminations of basically granting the motion to dismiss you look into the some broad concept as to what is the fairness is that is that what you're suggesting look at the they may please the court i am assisting united states attorney rebecca fall here on behalf of the united states and special agent steven decker i'd like to address some of the points that you were just speaking with counsel for the plaintiff  and there was nothing strange about the procedure in the district court the truth is that this was a routine proceeding the district court has the authority to request briefing from the parties and then all routine could it be i mean it's on remand from this court to speak to a specific issue i practiced twenty five years before i got to this court i don't recall being in a situation like this i don't know that many lawyers will face the situation so how is this is a routine matter i mean both certainly the question that was posed in the case was not one that's routinely answered in the district court and certainly when this court stated in its  that there was a question that had not been addressed and sent it back there certainly was an unusual question that needed to be addressed but what is not unusual is for a district court to say there's a question that needs to be answered the district court specifically stated in outside the record so there's no motion for summary judgment there's nothing pending in front of the court technically and so essentially when the order was issued by the district court judge it was not a part of any any particular hearing pursuant to the federal rules of civil procedure doesn't that make it somewhat unusual i mean isn't essential isn't there a real concern about the process that was followed here i don't think that there is a concern about the process that was followed and let me explain why  i've spent a lot of time thinking about this particular question so when i was disrespected that question i did expect that question so i think that it's very important in order to be able to answer that question to take a look at the the full history of the since a brief history but basically what happened was there was originally there were two motions to dismiss there was a motion to dismiss united states that was then followed by the director jones of the a t f that was followed by motion to dismiss united states the the district court granted both of those motions and fully dismissed all claims at that point this case came to this court for the first time and this court affirmed the gist muscle in its entirety with the exception of the malicious prosecution claims so at that point given that counsel i came in at the time of the second motion to dismiss otherwise the counsel has been consistent throughout the case when the case came here this court  dismissals by the district court except for malicious prosecution stated very clearly in the remount order that the reason for the dismissal was that there had been no burden shifting that there was no explanation by the defendant for why the underlying criminal prosecution had been dismissed that was all very clearly stated in the order from this court it was then remounted to the district court so the district court you're correct there was no motion to dismiss spending there was no motion for summary judgment pending and what the district court did was it said the ninth circuit identified a question that should be answered at the outset of the of the case i would like an answer to that question but it asked the district asked for evidence so didn't the district essentially ask for summary judgment briefing at this point no i don't think the court was briefing that was submitted by a decoration exhibit is similar to what a summary judgment briefing would look like but i think the important point here is that the court had not yet reached the place where it was asking for a motion for s appears that the court was asking for information it was asking for an explanation from the parties and perhaps if the plaintiffs had responded within the time that was offered to them and they certainly had an opportunity to be heard on this point if they had then submitted their own declaration on their own exhibits and said to the court there is a disputed material fact there should be discovery on this point there should be a motion for summary judgment they have shown that there was a dispute a fact without having had discovery yet well certainly they had an opportunity given by the court specifically in its order to submit their own declaration even but it isn't the question why the prosecution did something so how would they know that well maybe they maybe they didn't know that and maybe they would have said that to the court maybe they could have said we don't have enough information to say why the jack prosecution was dismissed so we would like some discovery on that point and there's nothing in the just a court's order that said the proceedings will end at the end of this you know briefing schedule all the district court said was i want to answer this question i think it's important to answer the question that was posed by the ninth circuit my sense is that the district court view that is a question for it to answer even though it was factually based and there are some factual questions a motion to dismiss you may have personal jurisdiction factual issues in the court resolves that we're not kind of in a no man's land between this being a motion to dismiss with the court empowered to rule on a factual issue and your brief argues standard so that appears to be the procedure you think applies or treating it as a summary judgment where there were disputed facts it should not be ruled upon by the court but should go to an ultimate trier of fact why is you why is the government's position the former rather than the latter that is wise of the government not viewing this as a summary judgment and trying to defend the factual determination by the district court in summary judgment terms as opposed to saying to the rare standard applies that this is a decision for the court to make in the first instance i think of the briefs submitted by the government does say that the clarion or error standard applies to this case that there was so and i just and that why why shouldn't this be a summary judgment there if there's a factual dispute the ability of the dish record to grant summary judgment would depend on the conclusion that no reasonable juror could conclude to the contrary  and that's not what the district court articulated that's not what the government's asserting and it's brief and i'm wondering why not if this looks like a summary judgment has the summary judgment standard been satisfied and if it isn't the summary judgment why isn't a summary judgment well it's not a it's not a motion for summary judgment i think it's on equivocal unequivocal it's clear from the docket it was not a motion for summary judgment and standing here today i can't say whether the district court had planned to go to a motion for summary judgment i think the only thing that's evident from the docket is that the court was asking for an answer to its question but if it's not a motion for summary judgment then it's a motion to dismiss still and if so how is the district court finding facts and taking evidence i mean that can be done if it's a jurisdictional question but this is an interesting question is it no i don't think this is a jurisdictional question i think this is a question of whether the plaintiffs were able to sustain their malicious prosecution case and whether they were able to  initially it was a question of whether they were able to allege the facts that were necessary to say it all the elements what it came to this court and the court said the burden was not shifted when it went back down i think it's i think it's very difficult to say there is nothing on the docket that says that this was a motion to dismiss and there's nothing on the docket that says that this was a motion for summary judgment what's on the docket is a request from the district court that says i would like an answer to this question and then the plaintiffs never answer that question target really doesn't matter what kind of motion it was just because everything was waived at that point and we have to figure out what what the posture was i think it's appropriate to say that the district court is empowered to manage its docket it's doesn't fall within a motion to dismiss those involved in summary judgment it's somewhere in this hybrid world district court judges have the power to say i'm just going to dismiss this case that's not what the court did here the court didn't just su a question that the district court posed there's no indication on the docket exactly what the district court intended to do with that information we don't know if the district court is going to schedule a hearing or go to summary judgment is perfectly fair to say that the plaintiffs really didn't know what was happening because within a couple of weeks after the deadline for the filing of a response they follow requests for a trial date and discovery and depositions etc they clearly are not aware of the fact  that they're now risking dismissal of the case by not responding and is there something in regard to the notice which they could reasonably say this is not fair no they can't say that this is not fair the district completely clear the district court said i would like the parties to answer this question i'm specifically ordering the defendants to respond plaintiffs may respond plaintiffs may respond with up to ten pages of briefing including declarations and exhibits plaintiffs simply decline to do so when i just record issues an order and asks parties for briefing parties generally respond by the deadline to the extent a party simply chooses not to respond at all to completely disregard in order to not even mention it and subsequent filings to not object do not take issue with what the other side filed certainly a party could expect that there might be some consequences so there was plenty of notice in the order that the court was considering a question and it seems to simply follow that if a quarter of a court asks for a briefing on an issue that it may issue a ruling after the deadlines have passed for the parties to submit their information there wasn't an indication in the order of whether the the court was going to consider this to be a motion for to dismiss or a motion for summary judgment or an invitation to set up a limited discovery or  u s attorney has officially submitted their statement in response to the court well what can i do with that that's what the u s attorney says is why they did it could respond by saying this is my op and basis for opposition or i need more time to gather information are some time or a request for discovery we this is how i dealt with it and maybe this was not the right way to do it but first of all my complaint is a response and this is in that no man's land of a twelve b six in a will fifty six but you'll note the court into its decision the dismissal is without leave to amend as page four of the trial court's decision and that makes a sound very much like a twelve b six and one question i would have procedurally if there's a six that but at the time you got this briefing order that test told you you had ten days to respond you didn't know what the district court was going to say once you didn't respond you got this order that said you have ten days responding you didn't i just really didn't understand my response to why don't you file something saying i don't understand what's happening well what i thought was my complaint is a response to your complaint that started the original malicious prosecution that is a response even though the court ordered you to file something and you didn't file anything received or it is sort of like i want to make an analogy it's like an employment case where the boss says here's why i fired this person and that person claims there are other reasons it's a pretext we're just going to accept what the u s attorney says that's it that's the end of it i just could not imagine but that would be the way i just there's just no way i've never had anything like this happen to me i'm fifty nine i've been doing trials a long time nobody's ever done this to me that we're just going to accept what one side says and that's the end of it i thought that was really that's where i think we have a proper appeal here thank you thank you consul the case is submitted