next case on the calendar is the cow and the johnson it please the court parviz is appearing for the appellant gregory mckeon the probably the main reason that this court respectfully should reverse the district court's order and judgment in this case is i would submit found in the court's discussion in five of the decision where the appellant argument was cool old convoluted course a convoluted argument does not preclude the argument being a cogent and correct argument what exactly is the argument here is that the performance for internal candidates is inherently biased against men the argument in this case is that by ignoring the external list where there was an open competition from both the outside and the inside both external kind of dates and internal candidates judge lynch who called in for an interview and we do not find this out until discovery that's because what your original claim was was a completely different sex bias crime which turns out not to pan out so now we're at this and i'm still asking you are you saying that the decision by mr scott is that his name to  only look at the internal candidate is inherently discriminates against men it because it takes out of play a preference for veterans it has a disparate impact upon men because it is an obvious fact as found in the united states supreme court case of fini that in and certainly judicial notice could have been taken that males at least in two thousand and ten certainly predominate in veterans ranks and yes do we have any record as to how many men or how many veterans there are among internal employees of t s a that made no difference in this case first of all the question would be are in the disparate treatment whether or not there were more just the treatment more it greater on the list more veterans on the external is than on the internal this that's not the point of our case the point of our case that as a general rule because veterans predominate among males predominate in vet and among veterans as found in the united states supreme court case of afine what tell me  if congress revoked the veteran's preference would that be unconstitutional because it was discriminatory against men no no you're right it would it wouldn't it would not but it would it would not be right now there a there is a preference and there was an apparently a governmental interest to make that preference the fact that they would to revoke their preference i don't believe in oh that's not before the court in this case about you know to answer your question i don't think it would be that there's not an argument here that you're not making the argument that this was an invalid hiring because scott should have as a matter of law considered regardless of sex the extra nal candidates in order to give the veterans preference i am saying your honor that mr scott had no reason on his own to decide to the process through here and said i want to promote from within let's let's take all the applicants from within the country in the company and then they're after working within the department and then they're after you know look at the outside list if we don't find would that be ok that's not in this case you're on and that's not the case and i'm not sure whether that would be ok perhaps it would not be ok is this any different really i mean he's just deciding to promote from within is a starting point  it's not like he considered you know that they they took the people from the outside list ultimately as far as he was concerned and and i mean everybody looked at that he made he made a decision not to look at the external list it was not the written policy of the t s a and i would submit that if it were the written policy of the t s a that might not be proper without congressional without a  congressional permission for that because what a regulation is there by trumping what what congress has said and you know judge lynch i believe asked whether or not if congress pistol or abolishing the preference again these are questions that are not before the case i'd have to think about it let's let's take the one that we've that we've got is there a rule somewhere that you're relying on that says that not just that when considering candidates for various jobs there's a certain preference for veterans is there any policy that says you must open these appointments to all comers and you can appoint only from within there is no such rule your honor that what we're going to do again it's not in this case but if as if there was a course of always promoting from within and not seeking the best possible candidate which was which did not happen in this case and ignoring veterans preference if that was something that was being done by the t s a that would be another case and perhaps it would be challenged let's not forget that in this case you know we also have what i'm asking for a summary judgment on this beret impact part of the case but on the disparate treatment case i also feel that this should not have been it a summary judgment granted because they his qualifications and they're in the wreckage we will we let us take one thing at a time you  you bring something up new after your time has expired i'm trying to figure out what the disparate impact evidence is suppose every person working at the t s a and kennedy airport i know this isn't true because one of the people who got the job was female but suppose everyone there was male and he prefers the internal candidates what is where is there a disparate impact by doing that on men because you're not talking about the veterans preference except as indirect evidence of some kind of disparate impact on male upmarket that's correct this is not it's not a veterans video e o case of course the fact that they disregarded it is it is a factor of whether it was a legitimate reason on the disparate treatment part of the case but in this particular case you're on a you give a hypothetical this particular case we have to look at this particular case where x journalist was completely ignored i mean this is and what is the evidence with respect to the gender composition of the internal workforce it's not that it's irrelevant you're on it them because you take you know and disparate impact if it's the and we know this isn't the case that if every employee was male every internal candidate was male what we're would you get disparate impact from favoring internal when you look at disparate impact cases you don't look at the facts of the particular case you don't look at a hypothetical such as your honour's have given you look at what was done in this particular case in this particular case the external list was ignored veterans preference only applies to the external is the judge in the court below said well that's and so obvious well feeney said it is it is obvious so that part of the footnote is is is erroneous so then you're left with you know and agreed i came up with this argument later you know as discover that's interesting we did we didn't know that and you know in the court in that footnote which throws out my case on that it says it's not an obvious fact which it is in and then in the end she talks about we didn't lead a case for the way we don't have to plead a case they're not it's not it's not an explosive remedy the v o a turns out good morning my name is set i can hold simon assistant united states attorney in the eastern district of new york and i represent defendant appellee secretary kelly the district court correctly held the plaintiff could not establish a prime official case of discrimination based on his gender from his non selection as a cannon handler j f k airport there's no evidence of discriminatory intent in his non selection and both the deciding official and one of the selected applicants were of the same genders plaintive rather it's undisputed that federal security director michael scott preferred to select qualified internal candidates for the positions for the reasons that have already there been a situation where there were you know not as many qualified internal candidates as he would have liked then he would have gone to the external list but his thinking was look we went through the application process we have great internal people people my preference is internal people give me the internal pile and so he didn't look at the external pile he just looked at the internal pile and selected from there and the district court correctly held in accordance with the jimenez and clifford's cases cited in defendant's brief that his decision to consider only qualified internal candidates is not supportive of a claim of gender discrimination plaintiff also makes the argument that she was so greater qualified than the selected candidates that as a result there is some inference of discrimination but that's simply not the case there is no dispute that plaintiff worked for many years as a cane and handling the nassau county sheriff's department suppose he he worked in the pile of people who were considered and he was so dramatically overqualified compared to the competitors there are circumstances in which that would give rise to an inference of discrimination right absolutely in the real problem here is i mean we could quibble over whether he's so better qualified or is just a little bit better qualified than somebody who got the nod but isn't the main point on your side that he wasn't even in the running absolutely this isn't a case where they compared him to others they the decision maker was aware of him he was not considered at all because he was an external candidate we can't we don't need to reach the question  and i must there's some dispute about whether mr scott is telling the truth about what he did and there's some and musters and evidence that he actually did consider the extra annele candidates then it doesn't matter how qualified  at the extreme candidates and there's a female candidate who is superbly qualified to be c f o who has applied for the job disparate impact that they could be in that hypothetical and that simply simply don't have the evidence of that here there's no basis to make that assumption here that you know for example that there were more men in the extreme a poll in the internal pool that were actually some discovery requests about this that were fulfilled  policy is when they bring folks into the agency that's when they apply the veteran's preference so therefore follows that if they were promoting from within their promoting from a pool of people from which there has already been a veteran's preference so you know i think we could put that entire that entire argument aside for their players counsel said on several occasions this morning that this wasn't raised until opposition to summary judgment and perhaps i guess he thought about it the deposition because he wasn't aware of f s b scott's decision to consider qualified internal candidates and that's simply not the case on april thirtieth two thousand and ten weeks after plaintiffs non selection in over four years prior to the filing of the amended complaint in this action t s a sent plaintiff a letter saying quote in this case the federal security director at j f k made the decision to hire a candidate from the internal list of eligible candidates and that's in the record at page two of the appendix for their year later as part of the proceedings before the employment opportunity commission in two thousand and eleven there were sworn statements from eileen caruso who is a member of the quote i elected to select from the candidates on the internal t s a list only my decision was based upon having an excellent candidate pool from within the t s a to select from and my personal desire scot had chosen only to select internal applicants over extra weapons and indeed in that very amended complaint it's alleged twice in paragraph thirty on page twelve of the appendix and in paragraph forty five page thirteen of the appendix therefore there is no justification for a failure to raise this claim prior or a lawyer and before certainly the opposition to the government's summary judgment motion how long after the and as i said there was there was some during discovery there was some discussion of the gender makeup of the two pools and over the government's objection you know during our good faith compromise that information was turned over to the extent that that it happened and just very briefly i know that the plaintiffs had argued and mentioned it and i think judge lynch changed the topic back but he'd mentioned something about granting summary judgment for pla i just wanted to point out that plaintiff has never moved for summary judgment in this case plenty of never raised the concept of plaintiff being granted summary judgment until his reply brief in this appeal after the government had had any opportunity to say anything about it obviously the government believes there is simply no support in the record whatsoever for a disparate impact claim and for that reason you know even if plaintiff was entitle procedurally to move for summary judgment we still believe that the district court's decision get granting the judgment to respond is firmly discouraged unless the parties have had the opportunity to fully develop the facts and fully brief the issue for example in six fifty fifth avenue eight thirty third sixty six at sixty nine it's a summary judgment should not be granted in the circumstances but again i think we're very far afield i think that there isn't any evidence supporting plaintiffs claim in this case and the decision of the district court to grant summary judgment to the government should be affirmed unless the court has any further questions we rest on our brief thank you first i did not indicate that we did not know that the he ignored the external list we knew that he ignored the external list we didn't know that veterans preference only applies to the it external external  list number number one and we also didn't know that in choosing to ignore the external list he was just acting on an ad hoc basis without any official government policy to indicate that one should have more around boasting trump veterans preference number one number two we don't have to show intent in a disparate impact claim that moreover the fact that one of the two people who was hired was a male doesn't affect our claim on this on this issue of trying to get my head around this issue so if the extra list was composed of qualified people it came from the interviewers had five women and one man your client and the internal list had five men and one woman then you're still saying that the decision to consider the internalised in preference to the extra analyst has a disparate impact on men yes i am because it's not based on the individual case as gregg's makes clear you know in  instances sure there won't be a disparate impact but overall there will be a disparate impact at least as pointed out in feeney while there have been all this discrimination against women in in  becoming members of the military by the way this of course is a title seven case assuming and i also have in my complaint i sued under the constitution and the forty amendment even on an equal protection argument where the gender would be a question of mint mid level scrutiny there there would be requirement of intentional discrimination under the constitution and that washington against davis yes but there might be that might be something for a trial or a fact to determine possibly so that and as to the question of my i move pursuant to the section that allows the court to search the record in asking for summary judgment the fact that it didn't come into my mind until i read the opposition brief and i said wow perhaps i should get summary judgment if the court has no other questions