the difficulty is whether it's concrete enough so what concretely would you plan to show we have documents from the pension board that classifies the dollar amount of the injury to the unmarried about twenty six percent of the women who retire are married and that's it two fifteen or why then is that enough to establish disparate impact on the basis of gender as opposed to marital status it's the type of disparate impact that this court discussed in the stout opinion where if what you're looking at is the privilege of employment and here is the more valuable retirement benefit the protected class here female a completely different reason judge wardlaw we presented evidence that shows that maybe get more valuable benefits seventy six percent of the time and females get it forty six percent of the time so men get it about three out of every four times and women get only about one less than one out of every two times and instead remember the disparate impact was the fact after it was realized actually we have a statistician already we have standard deviation analysis that we could have presented that we didn't because it wasn't raised mystical anomaly is at least between two and four standard deviations from the expected amount which is that that that raises the presumption that again the because it doesn't like females or was going to have the benefit i'm only suggesting that this is because of a reason i don't know the answer to a sociological reason there are women in the public sector at least in the city of san diego happens to retire at a greater instance being unmarried than men i don't know the reason for that but that is not to get with the case they'll look if someone doesn't if someone retires a single female married person can well maybe because of the married person is case there's a question of how long they live if they're married person who lives only a week longer and then dies then the married person ends up with far less than the single person who got the cash right and judgement that could happen that almost never does but for example if you look at the norris case where the supreme court said you can't pay different retirement benefits based on gender you cannot do it period when live longer than men we know that and if you go back to cases before norris was nan hart which we've cited and discussed public devising a pension plan public employers what they did was they know that women there longer than men so originally they made when paying a higher contribution because they would get the benefit longer not only because sometimes women for men but usually they don't  status discrimination case that happens one hundred percent of time that's a state law claim filed in federal court because it has a title seven impact also statistically so it is a state they want to see her claim this in the record up to ninety three to ninety four and twenty five he commented that the plaintiff hasn't come forward with any evidence at this stage demonstrating no documentary evidence of article three standing that's because it and try to confuse the judge over issues that were raised i don't want to do that why would you do that my position papers were twelve pages long which is the district judge will remember i think i have a twenty page budget i don't with the issues  by ordering the ordinance changed declaring an invalid for example to give married and unmarried people the exact same choice the reason that this benefit is worth a lower dollar value and the pension system is actually calculated to a penny for every retiree is because the unmarried retiree only gets back about half of their contributions they're married retiree gets back all of their contribution and that's why there's a difference but that's that's not really true as a counselor i thought we were just talking about the fact that the unmarried question gets all of his his or her contributions back upon retirement no diego i almost don't know where to begin well let me let me start you off with something you know i eat i would be very loath to say that the district judge has to give an injury from the actuarial if i had to prove actuarial injuries that worries me is sufficient for child purposes but but can you just tell me why it should be so obvious that without argument and without a record directed to way that there is no standing yes to it part of our motion below was that argument that we made and i think the judge smith was getting to it and that was made at the trial court in the context of failure state a claim which goes to your proof issue the district court judge said  i think you said you're right you're strong right but it goes to standing and here is the here's the reason here's the argument the the way this benefit works is that mr congress right everybody pays in the same amount for the benefit upon at the at the instance of the tyrant the employee makes a choice there's no discrimination or disparate treatment of any type during employment news one of the plaintiffs in this case is a poster child for that she was married for part of her employment with the city and then divorced and then did not remarry the critical moment is the the nanosecond in time when you retire either married or single at that point if you are married you have the ability to claim the surviving spouse benefit who knows what's that what that is worth on an average basis the system it can be calculated how much it's worth to the average surviving spouse not to the employee base that is to the average surviving spouse if the spouse survives the employee through a long time that benefit becomes very valuable will it be more valuable then the amount of money that the single employee gets at  either as a lump sum or added to their or a new ties during the course of their retirement don't know don't know so we don't concede no discrimination and we certainly don't concede gender discrimination it seems to me but that's a totally different question from whether this woman who is a woman who wasn't married at the time that she retired can't make the pitch that the fact to be married the time retirement and second that employee now start that spouse has long enough the for that spouse that surviving spouse to receive monthly benefits that outweighed the half that news would receive much interest and on  indeed has an obligation to do so and then then the question becomes what evidence does he look to in doing so and you can look to the whole under  of course not a question not just not only that none of us has seen it but it boils down to is a statistical analysis let me this judge said and which i believe can be decided on the record is that individual plaintiff's injury is speculative and what the law on on retirement system says is that you can't make great determinations you can't you can't injured she can't do that because what was she doing compared to company she's being injured compared to him compared to what an average spouse and one person who's an after surviving spouse including yours ever been married will testify that there is no such thing as an ever spouse there's only your spouse that there is only speculative injury as to her the point i wanted to get to is the is upon me in the accident of the plan not upon the retirement of the individual it's this plane was an acted back in the seventy's ms wood has been  a member of the system a vested member of the system since the late seventies she cannot start her time limit running from her and from her moment of retirement the there are several cases that we cited the north gives an case out of the seven struck at the docks in case out of the sixth circuit parks out of the sixth circuit all of which state  and follow really follow the the rationale of the railroad the national retirement system case the united states supreme court that the time starts running from a discriminatory act there's no then if any the enactment of the plan the time to file that suit does not run from her retirement when there is a a disparate impact system but plaintiff doesn't  get to wait to see which side of the just when in fact they fall and if this would had married the day before she retired she had been on the other side should get to make that choice then she has to make it she has to challenge it at the beginning