states supreme court in digital realty trust versus summers in the unanimous holding which is unusual found when congress includes particular language in one section of a statute but omits it in another the court presumes that congress intended a difference in meeting meaning of the statute in the siting locker in vs united states a two thousand and fourteen supreme court case as a basic premise here today we have a district court that took the private sector aspects of the age discrimination of employment act and applied it to the federal employee six hundred and thirty three dollars a section and that was in error recently and and the government has just submitted this week of a document in opposition to a motion for search to ari by the solicitor general and in that  petition the court record the solicitor on behalf of the government recognized that the ag e a a is based on the federal employee sections of title seven and it doing so specifically said at page eight of their of their moving papers that it is the position the united states that in fact lateral transfers or adverse employment actions and all of has been a problem a safe for you though even with that and that's a helpful development for you is even if you're saying you're right in the government's now said we're there it's going to be a standard that  the standard will be different here and a transfer in theory can be an adverse action for your purposes and that your next probably arguments going to be that the but for test is also not applicable here so assuming both those are true the district court of thirty plus page order indicated what avar i find is the finder of fact that the decision here to transfer your client was not motivated by why should we retirement eligibility when they selected thompson for transfer your honors we cited at appendix volume six which is part of the transcript  say specifically at page one hundred and seventy question now you assume that ms valerie thompson and i'm talking now in two thousand and thirteen she was about your age or so correct answer that's what i figured yes question right all right so generally speaking in dealing with ms thompson i don't think you dispute in two thousand and thirteen you had a sense that she was retirement eligible right answer if i had thought of it that way i would have come to that conclusion yes it but he didn't say he thought of it that way and he was talking about what he's saying not what he knew well i think he end we have the time and place list that also monitored the higher date we day knew she was hired into  retirement eligible in our age because he started working at the naval investigative criminal investigative service at the same time as ms thompson and all right question  line and on the date when you selected her for that you knew she was retirement eligible at that time direct near your leaving out the next sentence after one you quoted or paraphrased ridley testified that he didn't know thom younger than him he surely knew his own age so he knew our assumed he knew how she was well i judge took that into consideration well i don't think that's so for with all due respect your honor  the st sentence where they he says they don't know and then some assumptions doesn't go to demonstrating that the court took this into account and and based on what just said it  think the entirety of the opinion on the transfer of the discharge the constructive discharge all is based on a constrictive you at the very end he does and he does mention well if you assume this or you assume that but i don't think the court could read into the opinion to say that the initial premise that we have a very restricted view of a federal employees protections under the was born on the same day the same year as the defendant and the defendant knew therefore the defendant every day of his life after he found that fact out knew how old she was to the day that doesn't mean that his action was because of her an age and that's the critical fact found out of court to which the clearly erroneous standard applies not only that but it's enhanced clearly erroneous because it was based on demeanor and credibility decisions well it and of course i'm not arguing in any of these papers that the standard is well you know ms thompson happened to be of a certain age therefore there's per se discrimination at all what we're saying is that's a clearly erroneous fact when the court says and i appreciate what your honor saying about the next sentence but he says they did not know her age they did not know she was retirement eligible well they didn't know that and that was something they considered and i think the record is ripley well it won't and that was something they considered based on what finding of the district court that's the critical issue in the district court said they didn't consider it take it into account that the decision had nothing to do with it and there is strong corroborating evidence that it didn't well what i needed to transfer somebody what the district court though is look at those facts in light of a constricted view of the federal employees protection so if he was viewed i'm not i don't don't have good i don't even think that at the last page of his fall that you don't like that that's corrected says that and he also says we are cited to page twenty seven dollars that he doesn't believe ridley or hogan knew her age or that she was would have known it and then i'm quoting from page twenty eight on the top line had he considered the isha in other words the age and retirement eligibility would not be in them and when they made this decision and that's what they said but the edit the circumstantial evidence that was presented was they looked at it if you look at that cohort that was transferred out of that southeast field office they were all retirement eligible we have evidence of the sea you're presenting evidence from which the judge could have inferred that it was based on age fine if you'd won they'd be making a counter argument and we'd be agreeing with you but you didn't and the problem is the act one big difference is a bench trial and he gets to make the inferences and he gets to accuse between competing evidence and it just doesn't look i'm not left with a firm and pression decision that that he erred i mean why not quiet is it not just clear error to determine that it wasn't based on age i mean there's evidence both ways that you're on it there is evidence but all of this is in the context of an erroneous view of the law ok and he makes that clear throughout his position on the standard for want of employment iranians view that a lateral transfer is not an adverse that's beside the point he didn't he said that discrimination did not play a role so it doesn't matter about adverse action it's is always said there are three independently adequate alternative reasons one is that a transfer is not an adverse employment action but even if it were discrimination played no part in their subjective determination to in decision making i've heard them testify i've considered all the evidence i believe that they are credible i believe that some of the rumor mill evidence is not credible that's my basis for determination and you want to hear three you know he it's the same he went down he has twenty six paragraphs sixteen he says even assuming argue end she suffered an adverse action and then on page twenty seven dollars even assuming that the but for standard does not apply plaintiff has failed to show that her age was a factor much less a motivating factor in the challenge personnel t thought she was his age and he was fifty so we would have no thank you thank you  decide this case on the very fact based ground that the district court found that miss thompson failed to show that any that age discrimination played any role in the decision to transfer her and as the court's been discussing there is ample evidence in the record to support the fact findings and conclusions of law that really and hogan contemporaneously at the time the decision was made didn't know her age if they thought about it they might have realized that they could have  hogan was provided with documents showing dates and ages and asked to calculate the map and said ok yes i could have done the math at the time but i didn't and the court credited their testimony and concluded that they did not know contemporaneously and the court also made  solicitor general urges the court not to take the case because it can be affirmed like this one on a fact based round but does say in a future case it intends it is the position of the united states that under title seven the federal employee version action from jacksonville to maryland and packed up everybody move everything up there move away from your friends and family they've given yet yours time's up in hope your husband can call you  adverse and i know that your public private sector case well not only that but it was one that in the same county it was so it's true that there are along with like that but again this is an c i s this is an agency that makes it a condition of employment to sign a mobility agreement understand that's a different defense or issue i would think i just you know suppose a set ups need you to go to japan you know by the way your housing allowance and i think this court has tried to frame what that means but i don't think we need to get bogged down in whether or not it was an adverse action especially in light of the solicitor general's filing and i also don't think that as the court has pointed out we need to go down the road of whether it was for causation or motivating factor although the trask case as amplified in the bab case that we filed in a twenty j letter says that it is about four causation standard but even as the district  found even under a motivating factor standard the overwhelming evidence at trial show that age played absolutely no role in the decision to transfer ms thompson this was a was a new policy it was a facially neutral policy where in c i s said we're short handed we have a hiring freeze we have a lot of agents who have been sitting in one place for a long time in desirable locations like jacksonville so folks coming back from overseas can't bid on those we're going to we're going to revamp our mobility policy to make it very clear to folks we need to move you for operational reasons and it made sense that people with experience like mr thompson they also were at that had at the top of the time in place list that those folks seemed like the most reasonable choice to transfer to a critical billet like the fraud village where they needed this visit where the person who ran that mr howard determined the up to eighteen bill it should be either eliminated or realigned somewhere else with and c i s and so mr hogan didn't necessarily chris say i'm going to get eight hundred dollars folks out of there in one year almost impossible to do that but it did make sense even though they're different they're different processes transfers very says downsizing which m c i s does almost every year with various offices it made sense that there was some overlap there to say well why don't we try to kill two discriminatory fashion that they wish but watch the theory behind that it would seem to me i'm just curious is that play into the legal issues that the number of folks who would be willing to take this as a career claims yes there is a lot of testimony at trial about that that they needed agents who were walk around they didn't want people to specialize even though miss thompson was an expert in her field that in mind agents to to specialize they want to be able to move people around be flexible they're very mean agency it's not like the f b i they don't have a lot of agents there's some offices they have just one so they wanted to make sure that they had people they could move around in especially after two thousand and eleven when director clukey take over took over and recognize that the fraud program had been really neglected after nine hundred and eleven that he wanted to rebuild that they didn't have a bench of experienced people with friday with in the fraud program and so the mobility poly makes sense this is why they have it so they can say this is an operational need we're no longer willing to tolerate mission failure by not filling these critical billets we're going to use this policy to fill them and that's exactly what it was designed for we don't have any questions if and they've got you three minutes really your honour's page twenty seven paragraph eighteen the court talks about again up and i'm back to is application of an erroneous legal standard plaintiff has not produced any contemporaneous evidence that ridley and hogan expressed discriminatory intent i think the opinion in order after trial is replete with the application of the wrong law to the facts in the case when you're on a talks also about well wasn't this i mean my client for twenty five years traveled to do her job and was willing to do this job except when you had the review to travel for twenty five years was that for thirty three years she traveled throughout she did have the exemption for a period of time of those she did ship duty during that period of time volunteered for it to be on a ship in and was not at home for a deployment and so i guess the issue here is they had two younger males who had for cure meant fraud experience  applied for the patuxent river maryland position my client knew this was a you know something that went on with the the work there and the court ignored the fact that they were to it additional my recollection goes to aside from what i raised on the clearly erroneous fact about the not lack of knowledge by ridley and hogan of ms thompson's age and retirement eligibility it goes to the entire context of the the ruling is applying law it does not apply to it at all that well the law that you say he misapplied doesn't have anything to do with that issue it does has nothing to do with discrimination or not it does have to do with the issue of discrimination in that the standard of personnel action he says does not rise to the level of adverse action and we are arguing the six hundred and thirty three dollars a so is yeah but that the adverse action issue is the chief pointed out is irrelevant to the holding that there was no discrimination in the st place if you find no discrimination because the acts you say are could be discriminatory are limited because of your application of a narrow view or an incorrect view of the law on discrimination against the federal employee versus a private sector employee then the court would necessarily find certain acts nondiscriminatory and that's what we're maybe not not saying that the acts that the court has said are nondiscriminatory would be discriminatory for a federal employee under the federal employee section of the eighty thank you thank you very much consideration the next case up is high point tower versus commissioner