case to the district court so that it can procedurally do the case in the correct way not on a motion to dismiss but on a motion for summary judy cation a summary judgment second as is pointed out in the opening brief it's decided after the briefing in this case and was submitted in a rule twenty eight j statement alternatively the correct statute of limitations is three years under california code so procedure three thirty eight a because this is in essence an action created by statute unless there are any questions now i'm going to sit down and give the rest of my time is to bieber  bieber on behalf of prisoner shorts your honour's i'm going to address just two issues in my argument i'll start off with the exhaustion issue because the argument there i think is a straightforward and compelling on facts that are essentially undisputed court did at that time is it accepted evidence on that issue that accepted the pleadings it accepted the declarations of the plaintiffs in except the declarations on behalf of the board of prisons and then and this is the most important fact for the purposes of the proceedings today the court made to find two critical findings that are part of its memorandum order first the court made the finding that the plaintiff's declaration taken on its face established that with regards to both of his complaints as eighth amendment complaint and his discrimination complaint he had filed a grievance at each of the four levels that was required and to the extent that he failed to meet a procedural requirement namely the attachment of the result of the proceeding before he was excused from that on the basis that he was not provided under the under under his declaration with that information and could not do it it was futile and impossible to do it and the court made it quite clear that if credited that established a complete defense to exhaustion what the court did then procedurally as interesting the court th accepted the declaration from the board of prison which the court concluded quote was in direct contravention of the declaration of the plaintiff schwartz at that point in time with the court did is it took the two declarations in a manner unknown to us we has it's not disclosed by the court weighed the evidence and essentially made a determination of who was telling the truth and who was correct as to the completion of the exhaustion of exhaustion requirement  and dismissed the case what we don't from i'll buy which was decided by the way just four months after the district court did this isn't everything the court did was unlawful under the standard promulgated by the on by decision of this court first of all as correctly pointed out by mr yadlin the court couldn't entertain a motion to dismiss at all without the power to do it because as you know you now by know the court established that the only way to often becomes a factual issue is when it's raised in a very advancer and as the court knows no answer was filed in this case before dismissal that's problem number one no problemo number one is not so problematic because it is merely procedural but problem number two is albino makes it clear not only that the correct procedural device is a motion for summary judgment but it makes it clear that it is the obligation of the district court judge to difficulty with terms like violation and unlawful because you don't expect the district court to be a soothsayer you are correct they did say that and indeed the district court acted in this in this case in large part because it was thought it was bound by some prior ninth circuit panel decision so the lesson for this may be to district judge hey you screwed up you trusted us and later we come out with an unmarked decision that changes the law so i take it your argument is that under the it says is the district court was allowed to do this because there's an exception under the law of the case doctrine that permits the prior ninth circuit ruling to dominate  notwithstanding the subsequent invalidated by an albino decision and that that argument misses the point for at least three reasons first of all the ninth circuit has never given law of the case force and precedent to to a case that was decided under a different law than applies in the present circumstances underwired verses to her tarun at at the time that the ninth circuit made it decision to affirm the prior dismissal based on a failure to exhaust it was deciding it under a rule that followed basically the now defunct notion that you could weigh the evidence that that's simply not the law anymore have to essentially hold that what turned out not to be the law has to give you given presidential value in this court for no other reason than the happenstance that before  the decision was made the ninth circuit uttered an opinion on this issue that alone would be sufficient to dispel the argument of the government but there's still two other problems with the argument this court has never given under issue preclusion standards or or law of the case standards presidential value when the the proof so called precedent was decided on under a different set of facts if you examine closely what the ninth circuit did when it made its pronouncement it made its pronouncements based on the findings of a judge morrow in the very first proceedings it had to do that by the way because as you remember in the second set filed that action was was filed in a context where the evidentiary or a was profoundly different so profoundly different that the court in its memorandum order catalogue and tabled the evidence and instead of the evidence being that for example with regards to one of the claims he'd not gone beyond the first level it was abundantly clear with documentary support that he had gone all the way up and so that the only remaining issue was the forgive ability of his not attaching the prior response so the other danger your array was different and the procedural posture of the case i submit was different and at least one other and very important to guard and that difference was that the last complaint the complaint this before you when that complaint was filed the prisoner was no longer in the custody of united states he was in canadian custody and tries it will the united states cannot find a single case to support the argument that they p l r a p l r a has ever put a requirement on somebody in foreign custody what at whatever stage of exhaustion he was prior to being changed it was futile for him to make a change there after a because canadian authorities can't change the administration of an american prison and b there is no evidence of the record that he even had the factual capacity to make a complaint i submit on the basis of yet one more argument that it would be senseless to give presidential authority to that earlier ninth circuit review reasoning and it would be senseless  because it would violate the very purpose of the law of the case doctrine the doctrine exists to ensure that inferior courts or co equal courts o obey the authority of courts which are there through superior or had jurisdiction to decide an issue it's a doctrine really of administrative deference it's not a doctrine of substantive law what a bizarre notion it would be that somebody would come to this court and say you should give precedential value and give respect to a decision that was made on the basis of an interpretation of the law that proved incorrect and in so doing  question you have on remand is whether or not the trial judge in this case in light of the ninth circuit court of view that judges who have shown such ardor about their opinion are sometimes best  interim and the real question you have before you is whether or not on remand this case should go to another judge i can imagine that that's what you're going to give us what she ruled in compliance with an existing ninth circuit case one you're telling us she can put out of her mind the fact the ninth circuit came out with a different law later if that if that was the proper do i would be making the argument but you did something i would suggest a little bit more of a let me let me try to direct you something that might be more useful which is why is it or what is your due process claim at this point i don't know i will make the argument on the discrimination claim because it's a more straightforward way to do it but that's not the question i posed i do you have a due process climate this  defense of of failure to exhaust you have a right to have decisions made in that system in a way that are sufficiently timely that you can get judicial review now but you are here government i know the argument of the government the argument of the that futility is controlled by whether it's few trial because you can't get a district court order or court review what it requires is quote as a practical matter at hand under the circumstances whether or not and administrative remedy is available and you see and the sat and the seventh circuit has been clear about this the ninth circuit the ninth circuit clearly has cited approvingly that seven circuit authority which says that the issue is not whether you can get to a district court the issue is whether or not the system is set up so that you can't get it in ministry of remedy and i submit to you under the pleadings of this case which we have to treat as true for the purposes of these proceedings you couldn't because here's what would happen to you dismissal to remand the case for proceedings consistent with albino which would require that quote reasonable discovery limited to the issue of exhaustion take place and then there should be a bench trial because  oh with the decision should be reversed click clearly if if i were standing here and telling you that my client was black then the prison system had a rule that black people per se not just and that's the question is what were you i hope you knew when you came you were coming to such an interesting argument you did everything surprise me please the court i am assistant united states attorney richard fark representing the individually named federal bureau of prisons officials today's appeal primarily concerns the complaints of mr schwartz from two thousand and ten while he was in bureau of prisons custody and let's be very clear about what those grievances were first arduous process claims which i think are adequately addressed as a matter of law but with respect to the said ministry of exhaustion issue which edition was brought up it's very clear that this court in two thousand and twelve examine those very same issues clearly search the record and conclusively determined that mr schwarz failed to administratively exhaust his remedy so what do we do about the subsequent  fifty six motion correct here this district court decided in the pre op by no context but it should make a difference here and here's why the twenty twelve decision of this court has already decided the issue of administrative exhaustion usually law applies doesn't it i mean and this isn't this isn't some unconstitutional retrospective application we need to apply the law as it applies today and ordinarily on appeal you'd taken into account decisions even if subsequent to the district courts determination you take into account precedent that's developed sense that agreed so why doesn't now by now apply it does apply and even in the post albino context this court has recognized several instances in which you don't need to undo what the district court did to affirm its ruling let me give you two examples the first example is a case called mcbride which was decided in two thousand and ten and in that case it doesn't tell us not to apply albino does it but what it does is it search the record and found that no further factual development was necessary to arrive at the conclusion that administrative exhaustion had not taken place another case is a case of  soprano where they looked at the case and even though the trial court had decided administrative exhaustion issues in a motion to dismiss the court this court went ahead and converted that into a summary judgment type proceeding because it realized that the court the district court had considered extrinsic evidence from both parties and in reviewing the record that is done essentially what a summary judgment motion would have done which is to analyze  disputed issues and find what was undisputed you know i know may not have bolted the door wide open and said that summary judgment is impossible but it certainly changed the landscape didn't it sure did from here  know the proper procedural mechanism is a summary judgment motion but i'll add that even the albino decision is not it's not purely a matter of procedure and the question is how do you approach it you approach your motion to dismiss differently than you approach a summary judgment differently than you approach what amounts to a bench trial in this case it seems inescapable to me there are conflicting versions as to whether or not the  circumstance where it's impossible for them to get to the to go to get this decision this grievance that they're pushing forward properly considered and as a result they argue they should be allowed to get to court and court recognizes that futility in pursuing administrative remedies is a basis to get to court what alvina seems to say is you make that decision at the end of the process not at the beginning well here it was made at the beginning and it may be that that at the end of the process the same decision will be made but i have trouble looking at this case and saying there are no genuine issues of fact we'll just clip and i'll submit to you that the very same declaration that was used by this court to determine that mr schwartz had failed to administratively exhaust his remedies was a very same declaration that was used in my use this court prior to albino now can you say that our memorandum disposition issued with regard to the same plaintiff memoranda disposition that would be issued an exactly the same form had the albino decision preceded it i can't if albino applies it seems to me that meme disco doesn't stand in the form that it's issue what all bios said at the very beginning of that decision is that the change that is effective may be one of more of nomenclature than of practical operation in recognizing that post alvina decisions  have characterized motions to dismiss as motions for summary judgment because extrinsic evidence was brought by both parties in other cases recognize that no further factual development was necessary so even if this court were to send this case not going to be any purpose served by going back and allowing for the factual development where there is none i'm assuming you position is that we should have put what should we say just before we see if in your view if we do  disposition it could also choose to convert the motion to dismiss into a motion fifty six motion in light of the extrinsic evidence that was considered that was provided by both parties it could state that no further factual development would be necessary or useful in this case and therefore affirm and is appropriate as well all the records that you need are already in the record of this appeal as well as a previous appeal nothing has changed i'll further add that albino not withstanding the change in the preceding will device that's appropriate for administrative exhaustion it did recognize that issues of administrative exhaustion should be decided  before the merits of the case were decided it did fall in line with the general precepts of the prison litigation reform act of one thousand nine hundred five in in pushing for early decisions to promote judicial economy to promote efficiency in the bureau of prisons and other prison systems and so it's it's necessary and appropriate that in this case as well that the administrative exhaustion issues be taken up and decided at the very earliest possibility and here it happened to be a motion to dismiss before the albino decision but this court has as i mentioned has several different options in affirming the district court's decision either based on  used as a something other than the usual riff would be six summary judgment are you suggesting that's he in circumstances where there are conflicting factual arguments but where there's an administrative record we get that f in cases regarding social security disability benefit appeals it's called summary judgment but in fact there are courts looking at the record and recognizing there are differing factual descriptions or narratives but makes a judgment as to which one is more persuasive is that the kind of summary judgment you mean or do you mean a summary judgment like the usual rule fifty six summary judgment or no genuine issues of fact because it's the latter i have a harder time here i mean we have the district court made specific reference to reliance upon a v o p attorney's declaration of forgotten her name and that doesn't dispute the the core argument being made by plaintiffs which is that yeah our paperwork was turned down so we didn't finish the process but just turned down because we couldn't submit the necessary attachments because we hadn't received the necessary attachments back that strikes me is a genuine issue of fact if that's the reason that the attempt to exhaust administrative procedure failed that seems to support an argument if utility now what i'm finally getting to there's a question in there honest that sounds more like a bench trial resolution not a summary judgment resolution and if it is a bench times the law in this area is very well developed and the bureau of prisons has very clear regulations with respect to its obligations to respond to administrative grievances as well as the inmates obligations to fulfill procedural requirements and deadlines the ninth circuit is very made very clear in the kimball vs sad case that to the extent that those that procedure is not available that it couldn't still file suit in federal court but that requisite threshold hasn't been met here mr schwartz has never argued that he didn't receive an orientation that administrative grievances could be filed he never said that the complaints were vailable he never said that once he submitted a complaint it wasn't sent on the declaration of sarah she shoot yes that the district court explicitly cites to that i didn't resubmit it because i didn't get the response back that i needed this a bit well the declaration from the e o p attorney doesn't speak to that and you can tell me the g o p has regulations requiring it to be given back by regulation sometimes get not complied with so how do i know that in fact trying to forsee back all the paperwork they needed to receive back in order to exhaust the administrative process how can i educate that what you can do is look back at the regulations and twenty see a lot of the regulation answer the question because the regulation says that if the petitioner or the inmate doesn't receive a written response within a  prescribed set of amount of time then he or she is allowed to go it and go to the next level he failed to do that i also want to bring this in the context of what the supreme court said in woodford vs go in thousand and six it made very clear that exhaustion of administrative remedies requires proper exhaustion that means following the procedural rules i mean following the deadlines and to the extent that inmates are permitted to claim that they didn't get a response and then file in federal district court that would render the p l r essentially toothless and that's not what the court nor congress wanted in passing the prison litigation reform act and so it's the extent that record the same record that is before all of you today at every one question i want to ask on a different topic which is that with regard to the nationality claim the district court but i don't know what's implausible about the claim that sven stated what more facts does he need to state that he couldn't get his request for assignment to a prison camp considered because he wasn't a us citizen but i look at the record there appears to be at least one document that suggests that's affirmatively true in the c r thirty nine which is something from the regional director which seems to reference the fact that he's not a citizen as one of the explanations why wasn't i will for a prison camp so if what's impossible about the allegation while more facts have to be stated it's implausible because it's incomplete what mr schwartz should've said is that he was a deplorable alien  of course he's not been described himself that way but it was his deportable alien status that made him required to be in a low security facility not merely by fact that he was a canadian citizen and so the united states has an interest in having deplorable aliens in a low security facility instead of let's say a camp which is a minimum security facility with no walls because they're in the status where they're being considered for deportation as a deportable alien well i'm not questioning the wisdom of the policy but to dismiss the ground based on the pleading deficiency continues to puzzle me his crime is there and the fact that he's he's a non citizen certainly played a big role you couldn't be at a were a u s citizen so why does that fail as a matter pleading if you look at the face of his complaint he didn't provide any specificity or facts to support that claim was merely conclus ground and the ground that it could firm on is that deportable alien status is not a suspect classification and that as a deportable alien he did not have a equal protection claim here and that's clean versus