rehabilitation act i have to say that i probably could be guilty of malpractise by not having initially put out a separate car the action of due process in this case but i think on whole record here is not correct for more than two years in every successive pleading hotly but i ask you this is there any way that you could elaborate or maintain a procedural their process claim and when they are given no fifth amendment due process rights to maintain their jobs and that alone is a cause of action for them in the case of storyboarding for example he was fired process can go wrong with any discrimination case because it's a different set of predicate facts in mr harkins case for example to send his medical records through to case right there and i know of no rule of law stop to think of it in the in the big picture i know of no rule of law that says you can have a statute or court rulings which repeal the fifth amendment right to due process and case was going the court allowed them to do successive recess of motions for summary judgment and did not allow me to do any discovery during that whole time i would in this case for a year and a half with not a stitch of discovery within a week or two after i got my first discovery i moved to make the technical amendment for due process i made that motion seven months before the trial date now we had a judge who works very hard he's from santa ana he was a visiting judge we were supposed to have hearings i think two or three different times during that seven months up in in boise and he had to cancel every time and so then we get two weeks before trial and he's upset because the due process thing is coming up  not from a broad range of jobs they didn't play the class of jobs at all all they pled was that they were disqualified from their job so you know our case we have the operator customer service representative inspector teachers a production supervisor airport screener and corporates are security officers for individuals with hearing impairment and examples would be disqualified for law of the circuit require you to provide objective evidence that the impairments you are regarded as having are in fact substantially limiting and if so where in the record have you was a violation of her due process rights and this court said no the factual predicate for two claims the same that claims foreclose and we have excuse me that was title seven title seven is your exclusive remedy here as well and here likewise the factual predicate is the same no inverses clone the squarely controlling here and the claim is preempted by the rehabilitation act that is why this plan is futile i'll note also you have to we have to make that court believes that futility is not a sufficient grounds for affirming the other rounds there in the record are sufficient to affirm that in the alternative on the discretion standard of review the district court noted that there had been two prior amendments one rights simply to say i said before you had two amendments and that was it i was closing the door you declined to rule on that ground and said i'm going to look at the leading factors he said i'm concerned that there is a possibility of prejudice because you're raising a new claim that was not there but this report made no specific finding whatsoever and this court still found that it could affirm based on the record as a whole and the facts there are closely parallel the facts here namely it was a new theory that had no additional facts and there was no reason given for the delay in amendment it was also a possibility of under prejudice as a result of the new amendment and the court said we recognize that there's a great deal of discretion that's provided to the district corporation that hires people and then they respond to correct leaves that come from another bureaucracy that's based on categorical decision making based on reports medical records whether interpreted correctly or incorrectly however the cookie crumbles the other bureaucracy says terminate this person because they fit this category  issue comes while you're on it i try to respond as one is i just like to clarify the marshal service has not ordered that these individuals be terminated and that's one reason in particular that the due process claim is not available here that's an issue that's currently pending before the about themselves or the rehabilitation act it's remedies that due process you describe because it's not relying on any factual predicate of discrimination would be available the same was true in no one versus cleland where they had brought the claims they didn't exactly know i believe it was your honor it was the challenge was you didn't afford me this particular method of appealing i my my terminations there were two avenues you could use one w what we're talking about here is the potential that the marshal service did not follow its own procedural rules for making the appeal can't they allege both as alternative legal theories of recovery without necessarily just because there's a rehab act they can pursue the discrimination aspect lying but they could accept even well you know that wasn't the decision that the district court was faced with and again i think if it were played in the alternative that would not be sufficient here the idea of no one is that you need to make sure that you are the two need to be not relying on the same set of facts that's provide the plaintiff with a meaningful and appropriate crisis to review and analysis of medical information now that wasn't notice of due process in this case well i think it is  well can you contest the standards i don't think you can test the standards and we don't contest the standard if they were to be contested it would have to be under the administrative procedure act doing during the room making process and in fact there was never the rehabilitation act i'm no it's a stand alone alternate claim that's and and fact one thing i raised with judge carter i said it doug if you say i don't have a rebuilt haitian that claim why don't when they when they put a storm or a storm or go out of business because the regulations that weren't even adopted in the ninth circuit yet still nine six months later that's not discrimination that's just