here the first case on calendar i see counsel here neary versus good work good morning thank you your honor plaintiff appalling respectfully is the minutes that this matter should be remanded because we will be insufficient to remedy the district court's failure to abide by rules and the district court interchangeable application of the motion to dismiss and motion for summary judgment standards throughout the decision as this court is no doubt aware states that motions that rely on matters outside the pleadings should be excluded and and the motion should be treated as one for either motion to dismiss or the parties should be made aware that the district court is going to consider those matters outside the little bit this is not unclear to me honor throughout the district court's decision first he lays out the standard for a motion to dismiss but then at the very conclusion of her decision she says the summary judgment is granted and so there's a little bit of considers the exhibit attached to the skin or declaration and then intermittently applies the motion to dismiss standard in certain cases but then the summary judgment standard in different parts of the decision for example there is discussion of the appellant not satisfy me but for causation standard in the disparate treatment claim however on that there were other errors of law throughout the district court's decision that merit a different outcome which is it is this is the novo review on the motion to dismiss so  why doesn't that wash away any problems that there may have been with the in other words why is he in your view is that is the complaint sufficient sufficiently plugged to close to  that he he didn't get his degree within two years so what's the i mean somebody could complain about it somebody got their degree within three years could complain but why could you with your client stand complain about your honor the alleged to be proffered legitimate government interest in this case is that the two year missing graduate requirement creates a more diversified workforce however it's difficult for the upon to understand how a more diversified workforce also excludes a majority of our kids we don't get to whether the basis for rational or irrational if your client doesn't have standing to assert that your client met the requirement whatever that requirement may be and however sound it may be but your cli so and they did the same thing seems to be true with respect to the protection i mean this this the in the equal protection you're complaining when executive order that executive order wasn't even promulgated until after your client's candidacy was was rejected so what your client standing to assert that even though your honor is is correct that the executive order better requirement prior to the executive order but he but he but he met that requirement so it didn't filter out in filter him out because of his age so hard to understand how it's a disparate impact since he actually he got the benefit of the considering literally did this to him he got through and got the and got the benefit of the fact that he fit within that category disparate impact normally is that you have a you have a series of of qualifications that are directly related like to raise certain age or sex something like that but have some kind of disparate impact with regard to some of those suspect classic if the if the classification were expressed as such such that it's is just a it's an alternate it's a substitute for attempting to screen out those kinds of people here it didn't do that to him so i don't see how he has a disparate impact claim at all even though when we think go on to the issue of disparate treatment the judge concluded that because one of the people who got one of these fifty four births was forty years old that that meant that the the dis treatment claim was not viable because your client was just you know a year older like i briefly stated earlier on or we cement that to pop plausibly plead a claim for disparate impact i apologize disparate treatment we are not required to establish for causation to the standard of gross which the district court applied in this case well in in a a forty one year old was rejected in favor of a four year old when that categorically refute the idea that there was any age discrimination and most people can't even tell the difference between somebody who's forty and forty  so why does not apply here marriage sponsor by all means your honor i think this case is somewhat unique and not the way my client became a certified verified applicant was through recruitment process and since this was a motion to dismiss we have a palin at least has no understanding of how certain candidates were chosen the basis for thinking that a forty one year old was rejected because he was one year older good morning may please the court from the u s attorney's office for defendant martin j grunberg this court should affirm the district court's dismissal of mr neary age discrimination in equal protection claims first the district court properly dismissed mr nereus disparate treatment claim even when taken as true near is allegations do not plausibly suggest that the f b i seized decision not to hire him was due to his age and that age was the but for cause of that decision and i just want to address one point could you just explain that i mean your you just asserted yes your honor the only allegation motion to dismiss so he said he's allegedly forty one fifty four people wired they were all forty or younger there's a policy around th that tends sharply to favor people who are in their twenty's early thirty's so why isn't there at least a viable allegation of  treatment there is not a viable allegation here your honor as you observed mr neary was forty one at the time and a forty year old was hired at mr neary alleges that a forty year old was hired after the recruitment events at issue and that's really the extent of his disparate treatment claim as to the not really because there were fifty four openings so you could conceive it as his being as his applying for fifty four positions in one of those positions he was not hired and a person one year younger was hired doesn't show anything but how about the other fifty three perceptions we don't even know the ages of those people if they were all over the age of if they were they were distributed between being under forty and over forty that would be one thing but it looks based on plausible reading of the complaint is that only one of the fifty four was forty and everybody else was younger that means there's fifty three instances in which he he was he was turned down relative to somebody who was who was considerably younger well your honor there is no allegation in the complaint that everyone and every one of the fifty three who is hired with significantly younger than forty are younger than his sister but you plausible considering that the agency's own policy favorite people who were within two years of getting a degree it's not possible for two reasons your honor first as to that policy as we discussed in the brief there was no such policy in place at the time that mr neary i don't understand why the district court ju troubled herself with this thing this is a policy that comes two years after the fact it's frank i think it's not that you have a power you have a hiring decision made two thousand two or three times to see if i was missing something you know i thought well maybe i'm getting older so maybe you're but but i don't get it and additionally although the district court did not consider this the government did actually present the district court with the job opening that mr neary applied in response to which was referenced in his complaint and we argue was could have been properly been considered a response limit ourselves to the complaint here that's exactly what you was going on here this became a sort of a improvised summary judgment but that's not what happened your honor the district court's opinion nowhere references either declaration put in by either party i'm submitting before this court that the court can consider that the attachment to the government's declaration because it consists of the job posting that was specifically referenced in mr nereus complaint as this is worse did the job posting express a preference for people who were within two years of getting the degree it did not it did not so there was no such requirement in place when mr neary applied to the f d a so much for the just verdict that that's that's what we all wonderland i don't get it i just what are we doing here i mean why does the district court even go down this road we presented the standing argument your honor the district court decided to dismiss that we should we should one of them is filled by somebody within a year no your honor but not specifically but this court has affirmed dismissals of cases where the only allegation was there were open positions and the applicant applied for those positions but the person who was hired or people who were hired were forty or under and that's really all that mr nereus claiming here so for that reason we would submit that the treatment claim was properly dismissed as well and the district court relied on the but for causation pronk to dismiss that claim of did which was nerve hard to plead at least something having to do with neary needed to plead facts to make his case a claim of discrimination plausible so enough facts to support a minimal inference that there was discrimination that was motivating this decision additionally  the he had to plead that that discrimination was the but for cause of the adverse decision here which was to not hire was he going to know the age of the other fifty three people gets limited discovery and supposed litigated his case in the e e o c since two thousand and nine so information about the ages of the individuals who were hired were available so you knew that at least one of them was forty so somehow we glean information as to one you know i don't know right that's right your honor and we would submit that it's not enough because he has not alleged anything else about any of the applicants or the people who are actually hired for this job he did allege that he had seventeen years experience which would be very hard for a twenty five year old to have would certainly honor but not for a thirty nine year old to have and that's why the ages of the applicants who were successfully hired is important in order for him younger than forty is that they were not as qualified as him but that's based on his his assumption that because he is of a certain age he would have more experience than all of those people sort of correlate doesn't  it it does it does if the ages of the people who are hired were significantly younger than him which we don't know we don't know that but he has not allege that and he hasn't additionally he hasn't alleged any facts that show that there was any discrimination directed towards him for example he hasn't even alleged that anybody at the f b i i see knew of or suspected his age he's not alleged that anybody made any comments to him concerning his age and concerning my kids concerning his age at the time there's simply not enough here for him to plead a plausible claim of age discrimination i see that my time is positions being given to applicants who were younger than forty because only one open position was given to someone forty years old which is still younger than plaintiff which we submit is sufficient to pause a the ages as your adversary pointed out the proceedings in the city afforded the opportunity to find out the agent now either your client found them out of which case what are they or you didn't bother finding them out in which case when i'm going to do so how did you when you got this decision did you make a motion for reconsideration given the fact that the the district court did use that summary judgment language at the to so that you could flush out your complain or flush out the factual scenario as to what the distribution of the ages were among those who had successfully been hired in your honor we did not because  that would have been a golden opportunity for the to give the district court a chance to correct itself and to create a record if it refused to do so so that we would then have an answer the questions that we've been putting to you about what the distribution was would  of course hindsight's always twenty twenty missile funds are you're here today arguing this case i see that your name isn't in the lead of the brief so this is an experience i take it so in any event there was no motion and we have no way of knowing what the