trying to do is put my best case for to this court and for my clients in life ologies to the court to take full responsibility also certainly the the briefs have more than adequate word limits and  you can you can make your case within the rules of the court for sure and you know to i think to the panel it was a huge distraction to have to understand what you were trying to present and then you know we certainly don't want that to fall on your client but that it really was kind of a breach of your duty to us if you i pod your honor if it please the court before the court is in the feel of appointment area  disorder this order focuses directly born of individuals with disabilities what this order diet says is that you have if you didn't boyd has a preexisting medical condition such as my client has a chronic medical condition you can't you don't qualify for the hardship if it occurred prior to yours except counsel can we can we move forward to at least one in my mind is the most pressing issue here i i don't find any evidence any evidence on your client's part that the government was motivated in part or in whole based upon your client's wife's disability there's a violation here because my wife had this problem and then made this transfer because of this they intentionally discriminated against me because my wife has this disability you know saying that to you yes your honor right we do and if you look  was through the chief by doli who was the chief of special operations at the time and he did that to grant it that he did that to help out your client yes your honor but it wasn't through the hardship process but why is that material whether it was hardship or discretionary just i i just thought it was important but he won my when my client when my client on may eighteenth twenty twenty fifteen went back was transferred unilaterally without consent and went back to a t f tag headquarters your honor he did he was just thrown back but that is a significant  problems then he was moved back to the place in which he was originally neither missed something he came yes but it wasn't just the court asking if it was like an accommodation was he sent back to the place which he was originally isn't that with this record this record shows that my client came here because a t f he requested a transfer f transferred him to california then a t f then mr blue kerry never requested to leave california because he wanted to care for the health safety and welfare of his wife was hired at point a at his request he was for a minute ago to point b the company then decided we no longer need you at point b we're bringing you back to point the point at which to carry has to care for the health safety and welfare of mrs because there and i assume this way as if he could come to california at least this reckons the desk that's why that's why he asked originally and  it's a qualification standards selection criteria order and this order focuses directly or on the disability in maryland who carry what it says is that if you again if you are transferred i'm sorry if you this order says if you if you have a disability and as such as mrs mrs boo carry a preexisting disability you don't qualify for the hardship if you do those employees that do not have that that the disability occurred during employment those individuals do qualify for the hardship and in this case m yonder and that may be so but what i what what i'm saying is it's this a t f order and is discriminatory and the effect of this order the subsequent practices of failing to maintain a duty station of an employee so that a poison take care of is the health safety and welfare of his wife it is discriminatory how can the failure to grant a hardship demonstrate that the agency was motivated by a purpose to discriminate and i go back i go back to the admissions of a t f your honor a t f amid it that my client did not qualify for the hardship under under the hardship rules a t f order twenty two ninety three and incidentally what what what what standard or review are you advocating the ninth circuit adopt this case the ninth circuit they've already ruled and that that if we look at look at the standard that was used by the judge it was a wrong standard in the district court the judge used a motor or a mcdonnell douglas standard with or with a a a from the arm i'm sorry use the determining factor standard with the mcdonnell douglas analysis the court this is a motivating factors in mixed mode of cases because it's a mixed mode of case the proper standard to use is the motivating factor standard without a mcdonnell douglas analysis and i refer the court to the supreme court case of pricewaterhouse and also the ninth circuit case of the hague case neither one of those were rehabilitation act cases where they that's exactly right you honor they they were american with disabilities act cases so it's an open open issue in the circuit what the proper standard we apply should be and you know i don't think it's an open issue because it was already decided under the american with disabilities act and the patient act takes from the laws from the american with disabilities act so i think it's appropriate to use the supreme court case and pricewaterhouse that standard permitted him to transfer because of that and as judge farris said at some point in time the a t f says business needs change and they needed him  washington instead of los angeles it is there what's your best argument other than the i guess the text of the twenty two ninety three order that they were targeting him because of his association with his wife and her disability you know i didn't hear any evidence of motive or pretext other than the order if we used the proper stand analysis you have to show director circumstantial evidence of a motivating the invidious reason right yes your honor and therefore there there is no pretext required because there is no burden shift and analysis to to to use looking at other than the order what is the director circumstantial evidence that shows an invidious motivating reason why the admissions you're on i have to keep going back to these that it said that the very beginning with so whether he's the head standard motive for transferrin reach transferring your client back to d c it is and it's sufficient your honor i understand you think it's sufficient but that i just want to make make clear what it was what is there on our thirty is the total sum of the elders if you mean whether we go with hit or mcdonald i guess that is the sum total of the motivational factor the motive whatever you want to call it your honor if we look at there it's page thirty and thirty two if i remember correctly in our excerpts of record were a t f made these admissions but a t f also made the admission in there are in on page twelve if i remember correctly your hon page twelve in their opposition where a t s stated that his request to avoid the transferred was denied in part because of the preexisting nature of his wife's disability if we look also on page two page t hirty of the our it that letter states that mr big kerry was denied the hardship request because of the current circumstances of the preexisting nature of mrs kerry's medical condition and it also says that on page thirty two that mrs boo carries condition preexist it and therefore he didn't he was denied the appeal and in the heart hardship i want to save any of your time you're lawsuit in this case and just failure to exhaust matter for purposes of evaluating this appeal only to the extent that the court lacks subject matter stiction if there is no underlying basis i also want to point  places so they want to know in advance if there's some reason and they want the employee to know it was well it's also important to point out in this case that this policy is not a disability policy process it is a hardship policy it involves all sorts of hardships that may or may not be related to medical issues and policy doesn't even address a family member's disability core pointed out the primary the most important issue in this case is whether there's any evidence whatsoever that the employer was discriminated against because his wife for the sake of the fact is there you know there is no evidence in this record ways it's opposition it doesn't matter it wouldn't alter the outcome if you use a motivating factor to determining factor or if you use the but for if we disagree that it did matter which this is a government advocating a particular case he would you it to one specific cause it isn't it is not a mixed motive it has to be because of the disability of the relative so as again i don't think it matters in this case because there is no evidence of discrimination for even if it was a in part or entirely but i think that the other circuits that have addressed this have all the determining factor in the parent's original motion he asked the court to use a determining factor standard and that's what the district court used this trick or use again there is no evidence in this record that the hardship request was denied because of the appellant's life disability so bottom line from from your perspective this really just come down to a complete failure proof that to the government's issue as this being an accommodation case this is a status quo case and even the district court held that it was a status quo case when the court ruled on this was a per have a tory claim an area injunction that it was a status quo case when mr kerry was only requesting to maintain his duty station and to maintain his position furthermore i like the court to refer to the birch be coca cola case and in that case the  court state held that a reasonable combination requires a change in performance procedures and facilities mr to carry did not request a change in performance procedures or facilities in order to better do his his job therefore this is a status quo case not an accommodation case and counsel i'm afraid your time is up thank you thank you for your argument i think the government's first ar