first issue is whether dr richelle flynn is a qualified individual with a disability under the rehabilitation aca nine hundred seventy three the americans with disabilities act and the two thousand and eight amendments and second as a qualified individual the disability and independent contractor does she have the right to file a private action against an entity whose receive federal funds under rehabilitation act of one nine hundred seventy three specifically section five of four i will be arguing the first issue and miss myth will argue the second issue on a point it's raised in the amicus brief the parties talk about this is a lack of standing in the judge says there's a lack of standing but it isn't instead of a lack of standing isn't it statutory whether you're covered by a statute it isn't a matter of coverage and that is what  contract with disability and if it does cover then that would give them standing at that point in order to file such a suit what's the point you're going to discuss i thought that was the whole issue here i know that there's a issue raised about she either does or does not show that she was improperly discharged and all but the district court didn't address that point and that's what if we if we reach that we would remand to the district court pretty sure to go through the record setter et an opinion but there were two issues that were that were briefed one was whether she's qualified in visual disability and the actually argue that she is not right but the upper league knowledge is that it would be sent back to the district court to hash all that out when well obviously if she was a qualified individual with a disability absolutely and that hasn't been addressed by the district court yet as well other then there other than the district court saying she was not covered by the act because of a quote lack of standing close quote that's true the district court never got to the merits of the case and as such didn't discuss whether or not she in fact was a qualified individual with a disability however on order to ensure that she in fact is covered by the statute we do have to show that she in fact was above individual with a disability so it seems that that would be part and parcel of the argument of whether she's covered is to make a determination or have a court made intermission that in fact she has a disability and i think you need to spend your time and that other issues if you know it we were going to send that back if we go we own the other issue i wanted to ask you about and i don't believe either party address if they did i missed it but as i as i understand it the assertion is made and maybe there's evidence and in summary judgment record that when she developed this disability claim disability it was the government gets the air force base whatever that it buys it it could not accommodate her request for a request for comma day sions but what is the import of that in fact it wasn't distinctive homecare that said we can accommodate your request it was the you well if we're going to go to the issue of accommodation and whether or not it was the government that made that determination rather than distinctive i think that would be somewhat of a separate issue as opposed to whether or not she's covered over yeah right to address the government in a different position than a private employer or independent contractor well the government is is obviously the ultimate customer client in the situation i understand that but legally though it is it is your difference in the government's liability in a rehab case than a private employer or independent contractor if she were the contractor that contracted with the government and the government then made this decision toward her then i think that she would be the same as she is now as she is with distinctive because her contract would have been with the government so i think that fine position is what you say and i believe that that's correct and of course the rehab act also deals with government employees who have disabilities to bring actions against the government themselves but that's not what we have here obviously in order to address the court's questions about the act itself what we stated in the brief was that in ninety two congress amended the rehab act and i'll call the rehabilitation that countries any through the rehab act so that it conformed with the eighty eight so that the standards that were used in order to interpret what a violation of act would be would be consistent between the two acts but what it did not do in ninety two was to cause the language to change so that and an employee then became covered under the rehab act as opposed to an independent contractor because they really have acted was with covered entities covered entities being those that receive federal funding and that did not necessarily apply to employers in fact what the what the members did was to ensure that even the contractors were covered as opposed to not being covered by perfect example of why they're not identical so it in most ways they're the same but there are times when the statutory text of the rehab act makes it so that the acts have to be interpreted differently and so it unaddressed the sole cause standard under five a four which is different from the eight and there is some disagreement over what the cause asian standard is under the a d l but it's not sole cause and this court explained in solid that because the because five o four specifically says that it has to be soley on the basis of disability that instead of overriding that with the a d a s causation standard which is more lenient the court had to go with the sole cause standard and that's basically exactly what's going on here the coverage provision of five before says no otherwise qualified individual with a disability which is different from the limitation to employees and or title one of the a d f a so the coverage provision in five zero four is much broader and that's different from the coverage provision of the eighty eight so the standards are supposed to be the same whether the act has been violated  to and a couple of things so going directly to the legislative history there some very strong statements that this was about extending the senate report that we cited in the brief said that it was about extending coverage to create a comprehensive set of protections to respond to the needs of any individual who wants to work and that's nothing having to do with employees versus independent contractors in fact individuals under five zero four covers a whole swath of people including employees also contractors but also anybody who goes to a public park or participates in any program or activity of any entity that receives federal funds it's a very comprehensive statues and so there's really no indication of that plus the language that case in the tenth circuit that says those who are covered by title five of the rehabilitation act will move at the same standards apply indicating according to the tenth circuit that coverage is already a done deal and that it's just the standards that they wanted to adopt and the reason for that is that when the eighty a was passed which is after the rehab act and basically there was a lot more case law and a lot more development on what constituted discrimination what was a reasonable accommodation who's qualified individual that was fleshed out a lot more in the case law and congress wanted to take advantage of it and so in one thousand nine hundred two they adopted the standards but there's no indication that they believe that that would limit the coverage of the rehab act and they certainly didn't discrimination what is a reasonable accommodation all of these concepts that had been factually flushed out in all of the eighty eight cases that they wanted to adopt there's certainly no indication that they wanted to limit coverage there the other way that that is evident is in the s text itself if if that amendment had been intended to limit coverage you would expect to see something in seventy four and a the coverage provision and that would say except as provided in seventy four d which is the part that adopts the that they're talking about an employee relationship your honor it was phrased as employment discrimination that's true and perhaps that's not the best way to phrase it but the fact is that this is just most analogous to an employment type of case under the rehab act so under five zero four because it covers all otherwise qualified individuals with disabilities the employment framework is the closest way that's that's true your honor but under the rehabilitation act this is still a cause of action the question here in the one that the district court decided is whether independent contractors are covered phrasing it as whether they had standing but as as you pointed out your honor that's not you know according to their pleading that we don't just decide you know how prophetic ok should we we decide vacation for how that's true your honor and i mean it's perhaps and that could certainly be an obstacle but if the question is whether an independent contractor and that's it that's what we weighed in on is whether an independent contractor can ever be covered under this provision and the fact is that they are and so if they fail to sleep to prove the allegations that they played if she pled that she was an employee and she failed to prove that she was because she's an independent contractor then then that would be a different issue but but she didn't have to show that she coverage as opposed to it bears on the the merits of the case we don't think so your honor a case against the government would be a section five a one case and so that could have been a different cause of action that was brought but that's not really relevant to the question of coverage here i just really quickly want to get to the secondary argument about bringing participant claim because it it's very clear that  any individual with a disability is covered and so if this is so unlike an employment claim that it can't be brought as an employment discrimination claim then it has to be brought as a participant claim under five before because independent contractors are not excluded but  correct that the apple e included an addressed the argument with regard to whether or not dr flynn established a case that she was in fact disabled but that was done simply an abundance of caution her position has been from the beginning that that wasn't addressed to the district court but we didn't think it was a good idea to just completely ignore it in assume that that your honors would rule that way but but clearly the district court made no determination whatsoever as to whether or not she was a qualified individual whether or not she had a disability i just wanted the court to know that we put that in for fear of not putting it in and we wanted to at least have an address but and to rebut the points because you've you stated in your br the fact that these are employment cases and employer employee relationships and this you know distinctive is not the employer of dr flynn distinctive into a contract with squids in squiggles which is a company that dr started and before that they accepted federal funds well now it is a government contract and like so many government contractors this company provides it when you when you receive better funds y elected to use that vehicle to have her contract and there's a quid pro quo there too if you decide that you don't want to have an employer employee relationship and you may be forgoing some of the benefits that she might have under the discrimination statutes with regard to the statu of current employees apply so that the focus of the of congress your honor seems to me is right there in the language that is focused on employees in employment relationships and that's what they're trying to clarify because it's not only to enact these statues as he is he further says it is to assure that there will be consistent equitable treatment for both individuals with disabilities and businesses under the two laws it seems to me are dead and the argument is that the businesses such as this thin you're the do business it engage independent contractors and all these government facilities should are entitled to know what sort of exposure they're entitled to discriminate against no sir i'm not saying that and they discriminate if there's any discriminatory action taken in this case which is there i would suggest that the record if it ever goes back to that would show that it wasn't but it's your honour's pointed out the government is the entity prior to even being aware that there was an issue with regard to this alleged disability that made the determination because our as your honor as our client is in the business as many cover concerts or placing individuals of a military base as a remote places where they have no control over the day to day  n act are limited to corporations with over fifteen employees and think of that nature well your honor i think that's less than perfectly clear and i understand i was not perfect are me as i know it's not perfect but where that's where we have a split into circuits that's exactly right your honor and i think that there is a there's going to have to be a determination made i think there's a balance that has to be struck if it well that that i think that's the position that this that they believe the sixth circuit has said that they have not adopted but your honor that the trend that i'm aware of in this circuit and is that that that this statute is that is designed to address the employer employee relationship and that's really what's at issue here i mean conceptually how do you get to who can be sued out of the work standard employee doesn't have to be a certain kind of person it has to be someone who is being discriminated against or not accommodated by the reception of federal but but in the first instance this is not a participation case and and i would like to point out to the court that participation has been raised as an issue as a fallback position for the first time before your honor's and just as with the determination below that that whether or not she's disabled this this case it would take up as you can't raise a petition patient argument at the at the first instance at the appeal level that she didn't bring this is a they didn't bring this is a dissipating case down below they brought it clearly as an employment case only and so it is our position is our position in the brief of the court should not consider the participation for she not be a participant you can she not be i'm not sure what do you mean going to participate well what i mean by that is that it is that there are two ways to advance an argument on the rehabilitation act the restrictions that we're speaking of are strictly applying to the employment context they the appellant has made an argument well even if she's not even if independent contractors aren't covered she's still a participant so she's covered but that argument was not made the participation she didn't write it but it seems to me that an independent contractor who is richer dissipating in this in the health care scheme as an independent contractor amended that the standards applicable to the a da were to come over to the rehabilitation act and that that the case law while there is a split certainly i would submit the case law in this jurisdiction at least in this circuit would appear to be that that of climate law cases of this nature or does it needed to address the employer employee relationship and the downside of not doing as it exposes an employer to a lack of certainty as to what sort of claim they may be brought against if if if a little you know the argument would be the end and don't hire independent contractors you your own employees the flipside of your argument is if an employer doesn't want to be have an employee m rule that you don't have to be a quote employee close quote the same countervailing argument and they'll decide that's true you are they were done well and it went there there may be other well your honor i think standards can be read to address the applicability of the statute the factors that are involved in being able to bring this sort of action in one of the and one of the factors that's involved in being able to bring th sort of action is the employer employee relationship in the absence of if that's if it doesn't come along with with the standards that are applicable them then i gree it's a problematic argument there are but certainly we would we would urge that in the broader reading of the word the the broad scope of it but but i understand your honest point that that is it correct that the word an over here is never mentioned  it as i've stated earlier when you were asking those of council about standards the reason the standards were changed was so that the courts can rule the same way about cases that come before from the real actors the a d a s but because that stands for such were changed did not mean that who was being covered as far as who could sue and who could be sued was being changed by make sure the standards conformed  act its covered entities those which receive federal funds that allows independent contractors who have disabilities to sue covered entities such as distinctive in this case not to allow independent contractors who have disabilities do that would close the door completely on the cause of action toward covered entities and the court can't allow that to happen other protected classes are allowed to sue covered entities under other statutes for race color religion sex and so forth but to deny disabled persons that same right what the shut the door completely on their cause of action against those who receive federal funds based on the arguments in the briefs and the arguments today this court should reverse every man and this case back to the district court for further proceedings in the for the questions