california law a claim preclusion with respect to an action under forty two u s c section one hundred and eighty three dollars is that a plaintiff is not required to exhaust any state imposed requirements before filing an action either state or federal court these include notices of claims requirements produce aren't required to take the administrative appeal that you took where you know neither was the parties in and in broster house they were not required to take an appeal but the court said they were be able to say that we would have fired your client regardless because she was violating our policy and we have an administrative decision that's pretty close of and so your damages are going to be zero except for exemplary damages which would be a dollar in your attorney's fees is that right they would claim that they were made the same decision anyway well they have an administrative you have an administrative decision that's pretty close of to you that says that they fired her for just cause period then and there's no way you can get around that basically as a matter of law you have no damages that's not correct and why not because the court in the event they're proceeding determined that there was a just cause y h there was a legitimate good phrase reason for the fire but it didn't think he consideration whether there was also retaliatory reason and well let's assume there was a tat retaliatory reason they're going to fire your client anyway because favorably not that more fair to anybody else so in your argument is you've got a separate measure of damages that that's not precluded by the finding of the administrative group we believe we can prove at trial that she that they would have not made that the fact of the matter is that the this was not an arbitration in fact it was an administrative appeal just like in this case and it ministry of appeal was not from the one thousand nine hundred and eighty three claim it was from but you could have raised the issue of retaliation in the administrative proceeding in resisting the determination that it was done for just cause could well there's nothing that says we could have presumed that presuming that we know you're going back to the agency that you committed the wrongdoing and ask you for a ruling in your favor it no that's why my mcdonnell said you're you can't have a state process that's outcome determinative where you get a different result in state court then you would get in done that but not california are and california determines whether we have done that with respect to administrative proceedings that took place under california right but that was a decision by the th circuit not a decision by the california supreme court the california supreme court makes and that acutely clear that ninety three dollars cases must be tried in court not administratively it actually it actually doesn't say that it distinguishes between covered by the mcdonnell case said so they're following the same eliot mcdonnell distinction in the u s supreme court and you're on the wrong side of that line and you're on the line of miller and go vs regions and and that's in particular to say that we're not going to allow this and again the there was no arbitration agreement there was no real arbitration it was simply at all hearing officer who was called an arbitrator exactly the situation we have in this good morning your honor is may please the court daniel bearer for ellie's city court why me and carmen nichols and one of the points that my colleague is not observing and broster house in saying that it's factually identical to what happened here is that in broster house the arbitration was mandatory the state bar have the option of picking sending the dispute about the fee to arbitration there's no indication in there that the state bar member can opt out of arbitration if that happens if they want to pursue their appeal they've got to go through arbitration so that's mandatory arbitration as opposed to as judge college pointed out the administrative appeal here was optional because there is no obligation to exhaust administrative remedies before going to court on a section one hundred and three dollars claim ms freeman could have gone its conclusion that preclusion would not apply then in the one thousand nine hundred and three action i think then there be a better argument for extending broster house roaster house's point was that if you're forced to go to arbitration occur applies you're effectively out of court on one thousand nine hundred and three if you win you wouldn't go to court on nine hundred and eighty three if you lose your precluded because the administrative decision was precluded you'd have sensually have an arbitrator for me or not be clear on the law who taking the place of a jury and a federal or state court in deciding it nine hundred and eighty three dollars action they said that's against the legislative intent in passing one hundred and eighty three as opposed to that california law both before and after broster house has held that administrative remedy to administrative decisions whether or not reviewed in superior court under codicil procedures section  afterwards in the mohler case there is the mcdaniel case which said that the rule applies but we're not going to apply it here and there is this court's decision in dover says you know regents of the verse you california which was published one month before the opening brief in this case applying the preclusion rule that's the law both in california and the th circuit and hence from broster house or interpretation of bros your house is not a ground for disturbing that body of case law and let me ask you though so ms freeman is is terminated because of employee misconduct that's the bottom line correct correct and if she wants to appeal that decision she cannot appeal that in federal court because this has to do with the state agency correct correct indo they said that you can't do that in federal court right so if she wants to exhaust administrative appear remedies in preparation for the state court appeal it to take it to the state court she has to have the administrative hearing correct correct that's ok and then when she gets  administrative hearing then there's a real reduced review that the district court can do in the state court proceeding because it's already been decided that ministry typically correct correct ok so can pursue both of them simultaneously about how she has two cases going at the same time you think she could or could she could but there's the chance that if the administrative proceedings complete before the one thousand nine hundred and three cases heard there's to be claim preclusion that's sort of what happened in cook versus harding before this court last year there was over she really couldn't what you're saying is she really couldn't follow separate claim because she's got of do the administrators appeal in order exhaust or remedies in order to protect those in the state court for her misconduct terminations she is put to a choice if she she could either go with the one thousand nine hundred and three not exhaust her administrative appeals that could cut off her right to sue under state law ok and or she can exhaust the administrative appeals and including a one thousand and ninety four dollars petition to this appear court challenging what the city did and that would preserve her rights for state court causes of action but that would be issue precludes it in a section one thousand and three dollars cause of action and that's a point that i don't pursue that state writ here she stopped after the administrative she didn't she could have gone kept going and gonna stay corporate she just stopped at that point correct your honor ok and that's a point that my colleague raises in his opening brief he tries to argue that the exhausting mystery of appeal was mandatory because she had to do it to pursue some theoretical state law claim but she didn't pursue a state law klal she does and once the once the administrative decision is made the the rule review the standard to review for the district court is so small her chances of winning in the district court are about slim and none as we say back in the midwest correct well i've been on both i would disagree on target on both sides of a one thousand and ninety four point five writ and sometimes you win sometimes you lose it and so what happened below as specially my colleague claims that the hearing officer was biased even though he helped pick that hearing officer because it was on a list complains that there should have been discovery he could have raised those issues and ninety four point five bridges here court and didn't said we've got a hearing where we've got rules of evidence applying witnesses subpoenaed witnesses testifying documentary and evidence introduced the hearing also taking judicial notice the hearing officer was an attorney as well as a mediator and arbitrator this had all the horror marks hallmarks of a quasar judicial hearing and the hearing officer acting in a judicial capacity it met all the utah construction preclusion lessers any other questions i do want to address one of the issues that was raised in my colleague's reply brief he made some passing argument in the opening brief about this and the denture ruling being a an abuse of discretion i point out he didn't really flesh out that issue he threw in a lot more in the reply brief including an argument that this one decision from the rd circuit grider holds that the judge as find there was no substantial justification for submitting that evidence in order to sustain an evidentiary objection on summary judgment that's not the law on the th circuit that's not the law in the rd circuit and that's not a greater says greater says that if you're going to impose sanctions for making general objections to discovery under rule twenty six dollars g s of the f r c p then the order has to shows a lack of substantial justification because lack of substantial justification is what twenty six g says you need to impose sanctions unless there's any further questions all submit you can sel