the extent that we have analyzed those cases did not analyze whether the class of one theory people should in fact be applied in the public implements that there is a separate line of cases where the supreme court which employee is going to be a better fit which employee shows the most maturity of god and those situations those individual employment situations are the ones in which the that for example pretext analysis should not be applied and the question should be that the question should be could the got the public the government should could the government have had a rational government could have had and imaginable cases rational basis for it's not whether in fact the government didn't have that right now let's just call that the rational basis test  nothing at all and one is single with the concept of employment at will in a substantive sense and in respect to government employment no i don't think that they did at all i don't think that there is in fact the effect of your theory i mean the following which is about as arbitrary as and i think you can do the employers as you know instead of doing any other kind of lay off i'm just going to stand at the front door and i'm going to fire every third person in the order they happened to show up this morning and that application of the class of one it would depend upon the facts and circumstances certainly an arbitrary decision that an individual should be fired  where there is no rational basis for any arbitrary decision and the arbitrary decision is different treatment of similarly situated individuals would seem to give rise to a claim however there can be a rational basis  for deciding that we need to terminate the third people and third person this is the best way to do it for example there may be a very well thought out plan that is based upon we don't have enough money  i think that a claim could be based on that i do  every third person yeah it seems to me that that article and the way the ninth circuit interprets class want to present my understanding is that you can meet the past by showing different treatment similarly situated and no rational basis for individuals developed an invidious plan to get rid of two people my client was one of the two people and they took a series of actions designed to get rid of my client and they did that's almost like saying i don't have to show anybody else to move away i don't think that that's true i think that they that when you have direct evidence and we did have a plan to get rid of something that is different treatment i believe that the principle that applies is the same principle that applies to suspect classes when you look historically at the development of equal protection analysis there isn't anything in the the most severe instruction to the jury in terms of what we were required to prove he required us to prove that my client was treated differently from similarly situated individuals number one he required my client to prove that there was no rational basis for the different treatment and he required my client to prove in addition that the different treatment was arbitrary malicious  in the ninth circuit or are for her and i'm sorry no rational basis for an arbitrary malicious or vindictive it did not have to be malicious and vindictive however in the ninth circuit prove either that no rational basis or arbitrary malicious or vindictive would would suffice for her and that is the most restrictive test again used in any circuit in the country the one that was given to the jury in this case so we have a finding by th you know i might add that if that's ultimately the way that the law evolves then what we have done is essentially provide a safe haven for equal protection violations well if you define  that's that's that's sort of circular well i think that the that the if there is any possible rasul rationalization that could be thought of is really the circular thing because you have to accept that individuals the appropriate way to cast the similarly situated individuals in a situation where plaintive did nothing and was singled out is to look at the individuals that the defendant interacted with in the w not everybody but it is a discrete group of individuals that they regularly interact with on the workplace on a regular basis in this case thirty individuals who were focused on my client and norma co twenty eight were not direct evidence of a plot to get rid of those too no evidence that they ever developed a plot to get rid of anyone else different treatment let me also respond to the issue of the reason was reorganization well that brings up the very have perhaps even more or sort of a general policy question but what also potentially related to our need to go into the constitutional realm here as distinct from simply saying she has remedies under contract and turkey use once again issue not raised in the lower court and as a practical verdict form was plain if the damages in one claim was included in another then the jury could mark that off i believe that for the economic and non economic figures were different but the intentional interference damages were subsumed within the classic one and it's also your claim that you you probably would recover additional damage that affected the one of the state law claims there was a there was a race and sex discrimination claim under i believe it was title seven and equal protection this is a case in which the plaintiff lost with respect to an equal protection claim on the basis of race and last time you can case on the basis of sex or gender if this court were to do nothing with the class of one theory the cortex and were to reverse the substantive new process claim as we urge it should there would be no reduction in the overall damages