p the office of worker compensation programs what if i awaited her rights under the st amendment when they reduced her disability benefits because she ran for congress which o w c p took as a sign she was time given the time constraints we wish to focus our attention on the district court's dismissal of the constitutional claim count three for failure to state a claim there are two issues that are not in issue in this case one the district court correctly held that it had jurisdiction over the o w c p claim under look pray versus department of labor decision of this co and to the court correctly did not question at this stage of the litigation mr shells claimed that her o w c p benefits were reduced because she ran for congress instead the court dismissed the claim count three citing the supreme court's letter carriers decision which up held the hatch act and a decision of this court branch vs the federal communications firmed congress's ability to protect the political process consistently with the st amendment well i don't understand is why is the running for  itself held running for office is not the same as holding a job he w c p benefits are predicated on his her shell's inability to work in that she could not walk in that she could not perform the duties of an air traffic controller i'm sorry well she suffered from various medical decision granting this shows benefits for injuries sustained in the course of her employment it was not ruling on her ability to run for congress i understand but on the other hand it was yes but her heard the air traffic controllers job demanded certain skills and one i'm sorry the ability to pay attention the ability to  be subject to sexual harassment as she was which was a part of o w c p s decision as we pointed out in our briefs miss purcell prevailed in a th circuit decision that found that she had been the victim of sexual harassment and the o w c p took that into account in terms of the conditions that she was experiencing when it found that she was totally disabled i want to suggest that the disability that we're talking about is not the same as somebody who's a paraplegic who is totally disabled senator duckworth is disabled as far as the military and the v a are concerned that does not mean that she could not run for office and it doesn't mean that she can serve as a senator it means that for the specific injuries that she experienced the v a is considering her to be disabled january two thousand and thirteen and this is in the record it's not in the appeals court record but is in the district court record it's documents sixteen dash two which was the declaration filed by the government by a doctor who declared that she was still incapable of four time work oh w c p went back to her and said yes but she ran for congress you didn't take into account that she ran for congress and that doctor said oh well if she ran for congress then maybe she isn't completely disabled what i am suggesting here is under the st amendment it is inappropriate to consider the fact that a person is running for congress and judge rogers the running in this in this purcell's case of was posting a website which takes no effort showing up at a forum every now and again on that is all that o w c p could point to and we assert that that isn't in proper factor in considering whether the compensation she was earning because of her injuries while a federal employee can be reduced mean that sounds an awful lot like us nd guessing the areas of disability no and in fact we're not asking you to nd guess that the merits of the disability decision the only thing we can ask for on a constitutional claim such as this is that the district court remand the decision to o w c p to rule out hurled running for congress and to decide based on the remaining factors whether her benefits should or should not be rebuilt that indeed just as my colleague you would st have to decide and you know in the branch decision which the district court relied upon this court said the right to seek public office is undeniable that's that's what this court said what we are suggesting is just as in the cases that held that it implies that somebody running for congress could not be compelled to pay a filing fee if that was if they were indigent but you yes for jobs that that's the the student loan as it is is an obligation that the person owes we're talking about money that the government normally pays to an employee or in the case of a filing fee there's no money  old this is a burden that is placed on the individual as the price of running for office and the supreme court says you can't do that you can't do that and what we're what we are suggesting is basing the decision basing whether the decision on whether mr show is disabled the fact that she ran for congress is a violation of the st amendment it imposes a without going too far into this the injuries for which miss pushout was compensated were emotional and similar kinds of of injuries which are not implicated in running for office  and it's you know why she's sitting in the courtroom i don't want to get into this this is protected information but the fact of the matter is is that o w the fact that she was a candidate without considering any of the issues that you're discussing so you're saying that they could if it were relevant to the disability determination they could  records if there were medical records that established that she had recovered sufficiently the emotional issues had recovered sufficiently as demonstrated by her ability to do x y z then yes that that might be something that odo b c p legally could find but by basing its decision on the mere fact that she had been a candidate is is a violation of the the determination you say that permissible or not what i would say judges and mr show is not given the opportunity to discuss that with a doctor but what i would say is if the case  remanded for consideration of this michelle's recovery or not without consideration of the mere fact that she was a candidate had posted a website if if o w c p s says in the face of bad that we believe that the activities that she engaged in indicate that she is recovering that decision by itself would be an reviewable that this issue is pacifically carved out of challenges posed it's the duty of the court to decide whether the constitutional issue identified by the by the claim was in fact a factor in the decision and that's that's what we're i'd rather you didn't but nevertheless now have a chance to raise your other two issues i hope you have a humans on the book i don't have any time for but we are prepared to unless the court has questions we're prepared to rest on briefs with the st to co i believe your honor that her argument regarding the c p s consistency in determining wage wages for activities involving political office is really a challenge to the assessment of the medical evidence in support of her disability  how this wall and in the discussion that this that we just had a moment ago dealt with the medical evidence that was submitted and this claim really correct your honor so it's not a part of the record before this court and while we would disagree with the characterization of evidence what we're arguing is simply that the there's no either o well i'm not sure how that case would would necessarily play out i know it's different from the if we have here because here we know that oh dave you see he began and you know the process by which evaluates medical evidence i think if you look at it from this claim from the f a a perspective where they that might be all that the agency knew with respect to a campaign website or that type of information and then submitted so did you see the process by which would obviously be then reopened and look at the record of the medical evidence i think it would be very easy to allege that the only thing we looked into was the fact of whether or not someone ran for political office however the process is much more complex than that well you do have a window into it here your hon or from are still filing however the allegations in the complaint make clear that the you see did go through its regular process as one would expect it to do very well your honor yeah i think what i can tell you about the record is that it wasn't simply just based on as a as a matter at the wall because you ran from what was  that the show would be able to do so this is a no no this is a vocational rehabilitation officer and i forget the exact i don't share your honor but it's it's an individual a professional who's responsible for determining what type of work she show would be able to perform should she returned to the workforce and that counseling i'm not exactly sure at the time i had your honor whether or not she had a  report but their decision based decision is based on her you know review of me of the counselors review the evidence or the counselor and and you know this process just has to do with how the department of labor in general determines what type of work an individual might be able to perform when they return to performing some work and i just want to clarify this is not necessarily determination not based on her prior job one who she could perform any job and part of the reason for sort of the birth was that she had suffered emotional of subject to different review and as the record demonstrates service that the complaint demonstrates but you know even if you were to accept the well though you would agree if  see we don't think anybody who's on disability should run for congress because that is the in our view sorrowful occupation for anybody on disability you would recognise that would present constitutional problems indeed i would your honor i think that gets tired so that you get back to judge rogers question what determination of may the running for congress is inconsistent with full time disability what determination by the department of labor you know yes yeah i think it's really just whether or not an individual has demonstrated the ability to perform some work and in the words running for congress would demonstrate who you would be able to perform some work do get to this issue of well it's not the same in terms of a wage determination or necessarily and how one determines what type of work you can do when you review a kind of a regular nine dollars to five dollars job so to speak and running for congress we might acknowledge that they are somewhat dissimilar however you can't ignore that even though they may not be the same as as an individual seeking work on on the open market to the extent that those activities as here demonstrated an individual's ability to work it would be relevant and appropriate for the department of labor to review and its benefits determination and we think that kind of decision was based on a political judgment i believe is limited to a conclusory allegation of the department of labor that's what i do a lot of benefit because of her running for office and while you know we believe that that's correct your honor as we noted in our brief the the department of labor's decision in this case and the allegations pertaining to that decision are devoid of any allegation that the department had any animus towards her for the t political activity or even running for congress in general as i noted before we have knowledge that he has wrestled with these concepts in the past but we think it's beside the point there's there demonstrated ability to work that is the so purview of that function at that juncture of the department of labor's consideration and that's the way this played out there's nothing in the can going to suggest that department of labor otherwise where you have an incidental benefits reduction or some injuries sort of unrelated to you were actually being able to run for congress your political you know your right to complaint is more of us fail to state a claim within this force jurisdiction to review constitutional plans and it's not enough in other words to simply point to the right to run for congress and then  well i i think in this case it would it would have more to do with did you see evaluation that will evidence or was it you know rather as a as a matter of law or just as a matter of their policy such activities would would bar the claimant from receiving any benefits so if there was a policy bar or some other structural preclusion of receiving benefits because of an issue that would otherwise be protected by the constitution i think that we might have a constitutional plan and of course we don't have that issue here nor ended it but i think your honor suggest you say that if it's the same facts with respect to also receiving full disability benefit or full disability benefits there are going to be burdens you know along the way with respect to financial obligations or other things that really don't implicate or otherwise limit your ability to seek political office like i said if the government were to preclude someone from receiving any benefits merely because they participated in some protected  constitutional activity without regard to the demands on the individual physically i'm exactly right your honor what the what makes this case different is that there's no  department of labor did opening worry and evaluate medical evidence while you might tell him i disagree with how that evaluation took place or characterize it in a different way it did happen and there's no indication in  sealed record otherwise in the complaint that the department of labor categorically barred the shop from receiving disability benefits because of her seeking political office with her spect mr here quoted the district court's opinion said nobody nobody would argue  this is that nobody would argue that a person has a right to run for congress well receiving full disability benefits in fact that would be a job for the congress it would be that it was the congress that said in the letter carriers that be a federal government had a right to ensure that its that its employees nonpolitical employees were not motivated by her position is no matter how much activity is involved in her running for congress that subject is off the table is constitutionally protected that your position is that the department of labor was not able to look consider that enough to run ten miles every day that would be irrelevant because it was running for office you know your honor it it's is an interesting question because congress has addressed to a certain extent a y yes the answer is that the fact that she was a candidate the sole fact that she set up a website no not what your point is with respect to your complaint i understand your complaint to say this is a factor that cannot be considered at all yes no matter how much effort it takes or no i'm not saying that i'm saying that the fact that the fact that you have a website which is the only just finish one more one more point your druthers congress has spoken on the question of whether somebody can serve in public office while receiving disability benefits at five u s c eight except for services actually performed in other words if mr shell had actually won her race for congress o w c p could not diminish your benefits the notion that it could diminish your benefits while whining simply makes no sense and in any event it's for congress to decide as congress did in the letter carriers case with respect to the hatch act and in the branch case with respect to the communications act congress carefully weighed all of these factors the pluses and minuses of the imposition on the individual and said that there were federal issues that outweighed him they did not only understand you properly read that if someone is elected to congress and serve fault as a matter of law disability as cannot be reduced yes right that's where you read that statute i i i think the language is very clear