race, non-retrogression is going to be our principal criterion except for rentals. then the clear testimony from the people applying that policy statement that they thought that meant maintaining the black voting age population, something which is a mistaken understanding of what retrogression entails. you don't have to look at all the circumstantial evidence about the shape of districts when you have a policy statement from the state saying, this is our number one criterion except for rentals and this is how we understand it in such a way that it's going to ensure that a 68% district stays a 68% district and a 52% district stays a 52% district and so on. >> just two quick responses to that, justice kagan. the first is the state is always going to say that complying with federal law was a top priority because federal law is supreme. >> this is much more than that.

this is very specific saying -- where the two legislators principally in charge of this said this is what we understand the requirements are, that we're going to maintain the black voting age population in each district. >> that brings me to my second point which is that imagine that we had done the same thing the plaintiffs are suggesting and we had a higher political science telling us that 55% should be the target. i don't think we should say race dominated in that circumstance just because we had a different target. they are bringing effectively a circumstantial case here. they have the fact that we said this is our objective under section 5 -- >> justice kagan's question points out the fact that the defenders of this plan did not rely on the fact that it was a political gerrymander and, of course, they said there was the 2% goal. the basis was race in order to comply with section 5.

>> my point about that is certainly with respect to specific districts they were based on partisanship. had they challenged specific districts, we would have responded in kind with respect to toeshose specific districts. but they never challenged specific districts below, and to answer judge leto's question on the other side, you should look at number 94 with the post-trial brief. although they mention districts they don't have any evidence -- i guess this goes back to judge kagan's question. this is a circumstantial case -- >> what about the evidence on senate district 26? >> senate district 26 was brought by congress, and because they specifically challenged that district you actually had a credibility determination by the district court about the testimony by that specific district. >> let me ask you about this section 5 mistake. isn't it so that both the district court and alabama were

laboring under the impression that retrogression meant you have to keep the same numbers. >> the district court made an express fact-finding here that our goal was to present obstructions in the black population in pre-majority black districts. >> if that's the understanding of what section 5 requires, then the whole thing is infected by that mistake. >> well i disagree with you respectfully about it being a misunderstanding, because i think in 2006 congress told us we could not diminish the ability to elect black voters in the pre-district ability of black districts. he told them that if they included that language it would quote, lock in place, end quote the ability to vote in the black district. if there is a 100% chance that black voters can elect a candidate of choice, you can't

drop that where they have a 50% chance or a 60% chance. folks get leeway, that we do not have to hit things right on the dot. >> i guess i don't understand your response to justice ginsburg. under one determination it was basically a caudification of judge suter's decision. no majority district had to stay a majority district. but in no interpretation does a 60 67% district have to stay a 67% district when circumstances change and when the ability to elect candidates of one's choice does not require it. >> this is what justice suter said. he said, quote, if racial elements consistently vote in

separate blocks, which it's concede they had do in alabama, decreasing the proportion of black voters will reduce the chance that the minority group's favorite candidate will be elected. the majority opinion in george v. ashrafcroft said that as well. a proposed plan that leaves those voters with a reasonable or fair chance will constitute retrogression. majority black districts that are only 55% black would give those voters a reasonable opportunity to vote. >> i wonder what you think of the practicalities of sending this back. let's assume that in the back of my mind, just relying on state policy is this. the state legislator gets up and says in our state there is a history of discrimination

against black people. there are very few black representatives in this body. i would like to find a way of drawing district lines so that we have a few more. okay? that's the normal way this case comes up. this is an adverse and odd situation. i don't know that that statement should automatically disqualify his plan. >> maybe we should look a little further into it and see what they actually did. suppose i start there. and then i say, okay. you both recede district by district. i suspect they'll be able to prove that at least in some districts, at least in some the statement of the legislator here did prevail and did make a difference. now, that's so they don't have section 5 to rely on as a defense, so i don't know what the defense is possibly going to be. and since we can't even think of what the defense is, why don't they just redo this plan over in the legislature and save

everybody a lot of time and trouble. what's your response to that? >> there are a couple of responses. the first is i think -- >> it's a lot of trouble to redo a plan. isn't it a lot of trouble? >> it is a lot of trouble. >> the point of my question is you want to go to that lot of trouble before court proceedings or do you want to go to that trouble right off the bat and get it over with? i suspect you would have an answer to that and i'm not taking a point of view. i just want to know what your response is. >> to respond to that pointed question, this was passed after 21 hearings held throughout the state of alabama, it was passed after extensive negotiations, it was passed in a special session of the alabama legislature that was called for purposes of enacting a redistricting plan. so we do not want to go back through that process. >> of course you don't. but my question is is there going to be a defense left that could stop you from having to go back? >> yes. i think the united states agrees with me that the question here

is whether there was a strong basis in evidence for us to believe that at the time we passed this plan that we had to comply with section 5. i think we have that defense even if we were litigating district by district. >> the question is what did it mean to comply with section 5? you can say -- everybody agrees that that counts compliance to section 5, strong interests in doing that. but if you think section 5 means you got to preserve the same numbers, and that's not what section 5 means, then the whole premise on which the district court based its decision was wrong. >> i don't think so because i think the district court's decision was premised on the fact that race was not the predominant factor in this plan. but to go to the question about section 5, we adopted a reasonable section 5 pre-clearance strategy here. it was the exact same thing georgia did in 2005 and what congress said in the house report when it reauthorized section 5 in 2006 --

>> if it turns out to be wrong, i guess you're still not guilty of using race. you're still trying to comply with section 5 as opposed to being racist, right? >> that's exactly right. they did make intentional discrimination claims in the district court. >> if the district court said race was not the purpose of this plan, what, in the district court's view, was the purpose of this plan? >> i don't think there was a need to describe that. >> i'm asking, was it the assumption they wanted to assure pre-clearance under section 5, and for that reason used race? so when you say the district court said, well, race was not the purpose, it was close to the purpose, because they were trying to use section 5 and use race for that reason. >> well it was certainly -- >> that's a very fine distinction. >> well, it was certainly a purpose that went into the majority by districts, but it

was not the predominant motive. >> don't you have to use race to comply with section 5? >> that's right. >> is there any way to comply with section 5 without using race? >> there is not. >> but you don't have to use race in this way, mr. brasher. nobody would say that section 5 required you to maintain a 78% district and a 78% district was no longer needed with respect to a group's ability to elect a candidate of choice. >> i respectfully disagree with that, and we followed the same strategy that georgia followed in 2005. congress made a record in 2006 to try to reauthorize section 5, and part of that record was them saying that georgia's plan from 2005 which kept all their majority by districts the same was a good thing. we did the same thing in this redistricting cycle that other states did in this redistricting cycle. we actually did the same thing plaintiffs did when they were in charge of the legislature in 2001. there's been inconsistency on that. the only difference is they tried to hit targets in the 1993

plan as they were in 1993, and we simply tried to keep the districts the same from 2010 to 2012. >> could i follow up on justice breyer's explanation of what would happen if this was done over? i assume section 5 would not be a consideration so long as a new coverage formula is not adopted by congress. is that correct? >> if the legislature were to pass new plans i do not think they would have to comply. >> the legislature could do whatever it wants if it relies purely on partisanship rather than on race. >> that is correct. >> to what degree would the legislature be justified in doing, and to what degree would it be required to take into account the degree if any, to which section 2 imposes something like a retrogression requirement? do we know what that might be? >> i honestly do not know how section 2 would necessarily apply in this circumstance. because by complying with section 5 here, we necessarily

complied with section 2 because it's a lesser standard. but i do think that the fact that we could have done -- if the plans are vacated they are very likely to just be the same plans reauthored. >> what would happen if on a do-over the objective was to produce maximum republican representation in both houses of the legislature? and in doing that there was a drastic reduction in the number of african-american senators and representatives. would that be a violation of section 2? >> not necessarily. there would obviously be a lot more that would go into that analysis. whether that violated section 2, you would have to look at each individual district and see if they could make a section 2 plan. this plan actually gives portion representation to black voters in alabama. they're about 25% black voting age population in alabama and they have about 25 voting

districts in the house and about 25% black voting districts in the senate. this plan meets that in that regard in the sense it gives proportion representation. but i don't know what would happen if the court were to vacant that he seeese plans and the legislature did a do-over. these are very sophisticated plans with very sophisticated counsel. the reason they did not do this is because they knew the 2% deviation kept them from gerrymandering districts. the 2% was adopted at the very beginning, so they had a year to come up with their own 2% plan, and instead they just proposed these 10% deviation plans in the legislature. then we had a year of litigation for them to come up with their own 2% plan and they didn't do that. that's what the district court was getting at when this court

said race did not predominate because we followed race criteria. and they said this is really about the 2% race population. >> you suggested there is some necessity for a 2% plan but there is no necessity for a 2% plan. states have routinely gone up to 10% without getting into trouble under renynoldsreynolds so that can't insulate your plan from this kind of challenge, can it? >> i think it can, and for this reason. we're in charge of adopting our race redistricting criteria. if the plaintiffs want to prove that race predominated in a plan, the first step to do that is to propose some other way of meeting race redistricting criteria that provides greater racial balance. they haven't proposed any way to do that, and the plans they did propose, even though they're 10% plans, are very very similar in many of these majority black districts. not only have they not proposed a 2% plan that's our criteria but the plans they did propose

are not that different. i think at the very least the fact the plaintiffs have not proposed any way of redistricting that actually meets the race redistricting criteria underscores that you cannot find the district court's fact-finding here was completely erroneous, that race did not dominate. i think the court should affirm on that basis. let me address the remand here. they said the court should remand this case but the district's position on that is inconsistent because the remand agrees that the population percentages alone in the districts are not sufficient for the plaintiffs to meet their burden of proof that the race is dominated. the district court said these are statewide challenges because the only evidence in the record whatever they may have said the only evidence in the record about these districts was just population statistics. >> you would look at the complaint. when i look at the complaint, i suspect i'll find something about districts.

it's certainly true that taking the u.s. point of view, it's quite clear the -- to me anyway, that the court decided on the basis of a statewide plan. so if it's wrong about that then they ought to have a chance to go back and make their claim district by district and have a decision on that basis. >> well and once again, i don't think -- they may have brought claims with respect to each individual district. i don't think they do. i think if you look at the complaint, you won't find that. but even if they did, the only evidence that they introduced about any of these districts are the statistics alone and the united states agrees with me that that's insufficient for them to have met their burden of proof, so i don't see how you can reverse the district court fact-finding as completely erroneous that race didn't dominate. i think the question is firm on the basis of fact-finding in reaching a basis on section 5. unless the court has any other questions, i'm finished.

>> could we go on that last point? earlier one of the two of you said if you look at the division of precincts, it was done on the basis of this policy. in almost every district. was that shown below? >> we introduced all of that precinct splitting information below, and in our proposed findings of fact document number 196, some of which is reproduced in one of the briefs. we made exactly this point. yes, your honor. >> what other besides the statistics, what other evidence did you present? >> your honor -- >> i can go back to the joint appendix, but i just want a summary of it from you. >> your honor the key fact we presented, i think that hasn't been discussed here is that the alabama constitution prohibits the splitting of counties. and they say they had a supremacy clause to meet these

targets, and that meant they could override the alabama constitution's protection of county boundaries and all other state traditional districting principles. and the 2% rule works the same way. if that's actually a federal constitution requirement, they can also override the key protections against partisan gerrymandering, the few that exists, the county boundaries or political subdivision boundaries, and means they can manipulate the alabama legislature by breaking counties into multiple districts and then deciding who runs the county by putting their district in there. now, a second question we answered that i think has been very important in this discussion -- and by the way, i don't want to lose track of the fact that on remand, the alabama legislature will have to comply with the whole county provisions, or at least they can't use this federal excuse to split them. the way most states do this is

they either start with traditional districting principles in the core districts and then look at the end to see have we maintained the same number of majority districts? or if they start with the same number at the beginning, which they're not required to, they ask, what is necessary in current conditions to preserve the ability to elect today. that's what alabama did in its 2001 submissions. it actually said that the number for the ability to elect was a 55% black voting age population. that's in its official submissions to the united states. >> thank you counsel. the case is submitted. on thursday, the supreme court in a 6-3 ruling revived a pregnancy discrimination lawsuit by a former united parcel service driver sending the case back to the lower courts for further review. peggy young is a former ups driver who was denied a light-duty assignment after her doctor advised her to avoid lifting anything heavier than 20

pounds because she was pregnant. young took extended unpaid leave and lost her employer medical coverage. after giving birth she sued under the 1978 pregnancy discrimination act. here's the oral argument in that case from last december. it's just over an hour. we'll hear the argument first in the case of 12-1226 young versus united parcel service. mr. bagenstos? >> if ms. young had received a 20- 20-pound lifting restriction whether required on or off the job, the summary judgment record reflects that ups would have granted that accommodation. but because peggy young's lifting restriction resulted from her pregnancy and not one of those conditions, ups rejected her request. that we submitted in the second clause of the epa, which means when an employee seeks an

accommodation due to her pregnancy, she is entitled to the same accommodation her employer would have given her. >> you make it sound as if the only condition that was not accommodated was a lifting restriction because of pregnancy, and i did not understand that to be the case. that's the way you start. you want to say this is only pregnancy. unless i've missed something. >> so i think on the summary judgment record here, your honor, the three very broad classes of limitations that ups accommodates -- they cover everything but pregnancy, and those three broad classes by themselves, even if there are some conditions out there that they don't cover -- >> i think that's a necessary starting point for your case. it seems to me you started out by really giving a misimpression. >> your honor, i would submit that's not right. i would submit that on this summary judgment record, ups acknowledges that they provide

accommodations to people with on-the-job injuries, but also the summary judgment record shows that ups provides accommodations to drivers with off-the-job injuries that result in d.o.t. disqualification. and ups has not been able to point to a single driver who lazhas a lifting restriction similar to my client peggy young's who was not pregnant. >> let's accept for argument's sake if there's a category people who are injured off duty who do not get light work assignments. so you pointed to the three large categories that do, but let's suppose one category doesn't. >> yes. so in that case, our position would be, as the statute demands, the employee would be required to treat the pregnant plaintiff the same as those class of employees who get accommodations -- >> it doesn't have to be read that way. it could be read that way.

it could also mean that if you give it to employees generally you have to give it to pregnant employees. although there may be special classes, i think one of the briefs had an example about you know if you have your senior employees drivenxdxdnb ñ-,tnprvsái]koueú!+ they are unable to driv9 themselves, you have to do the same for pregnant women. wouldn't you say that's the case? >> no we would not say that. we would not say that because our position is that the statutory text requires that employers provide workers who are disabled by pregnancy the same treatment they would receive if they themselves had a similar -- had a condition with a similar effect on the ability to work but had a different source. so what the statute prohibits is discrimination based on the source of the workplace limitation, not based on seniority, not based on position within the company. >> suppose you have a --

>> mr. dreyer? >> we have a brief as you've seen it from the truck drivers. they say they don't give many of these benefits to anybody. and suppose they do give a benefit to a truck driver who has driven over a particularly difficult mountain pass you know, or gotten himself in some danger. now, the harm or the disability is lifting precisely the same. it's just that the source was different. this came from taking some truck, doing something special with it, and again, it's a kind of most favored nation problem. i don't know that source gets you out of it. what do you say about that? >> i think as to that, the important point is that is an example of what may be an i had

idiosyncratic decision to provide to an employer -- >> i don't know if it's idiosyncratic, because i can't imagine employers don't have all kinds of rules for different kinds of jobs. are you saying as long as there is one job in respect to which let's say, they give them benefits of $1,000 a week when you're hurt on this job but not on others, then do you have to give them to all pregnant women who hold different jobs? i think the answer to that must be no, but the problem for that and for you is how do you distinguish your situation from that? >> right and i think actually what justice scalia's question to me contains the seed of the answer to that. it seems to me i might agree that an employer who provides a good deal to a single non-pregnant employee -- >> not single there is a class of people -- >> but when you have an employer to provides to a large class, to

its employees generally, to many of its employees this accommodated work treatment -- >> i see that. now, the other question i have, and it's the only other one is that it did seem to me there is a way, given your theory there's a quite easy way for you to win. and that would be to bring a disparate impact claim. and that's what i thought dis disparate impact claims are about. you didn't bring the disparate impact claim, therefore, what do i do because i didn't know you wanted to twist the intent claim so out of shape when you have a beautiful vehicle to bring the claim that you articulated. >> i think the claim that i articulated is the second clause of the pda. the second clause of the pda says women affected by childbirth or other conditions shall be treated the same as

others not so affected by their ability or inability to work. >> you read that as an accommodation provision, basically, and maybe it is but let me ask this question which goes to the issue of whether the types of akdccommodations that you would say are required have to meet some reasonableness standard. let's say there are two categories of employees who have lifting restrictions in their job descriptions. one consists of people who work alone and they lift all the time. a driver who is driving a truck by herself and has to lift heavy packages all the time would fall into that category. the second category would consist of people who lift more occasionally and they do it in a place where there will always be lots of other employees in the same class available to do the lifting. now, if an accommodation is provided to the workers in the second category, would you say that one must also be provided

to workers in the first? >> no, i don't think so. so our point is precisely that a driver who is pregnant and who has a limitation related to her pregnancy is entitled to the same accommodation her employer would have given her had she sought it with a different medical condition. >> why doesn't that second class fit within your reading of the statutory text? >> because in our view the statutory text by drawing this distinction between employees affected by pregnancy, childbirth and related medical conditions and not so affected saying employers can't draw that distinction, saying instead they look at only the ability to work what it does is it prohibits discrimination on the source of the description. if an employer says no driver who drives alone is going to get an accommodation whether for an on-the-job injury, a d.o.t. disqualifying injury or pregnancy, that's fine, because

it's the same treatment. we do not read this statute as an independent reasonable accommodation. >> i guess i'm not quite understanding why you can get the source classifications into a different category from all other classifications. so explain that to me. >> i think it goes to the statutory text. the statutory text says, women affected by pregnancy, childbirth or related medical conditions shall be treated the same, et cetera as other persons not so affected in their ability to work. what that text is saying to an employer is, don't consider whether this person is affected by pregnancy or not so affected. that's not the basis on which you can compare this employee to other employees. instead compare this employee based on the ability to work. remember, this statutory text was adopted in response to general electric versus gilbert that distinguished based on the source of the disabling condition, treated some kinds of disabled conditions differently than pregnancy-related disabled

conditions. >> you have admitted that other persons can't be read literally you have to read things into it. you would read into it people in the same job classification. but if you can do that, then why can't you also read into it people whose injuries -- whose disabilities have the same source? >> because once you do that, then the second clause of the pda doesn't occupy any space. and congress should have stopped with the first clause. congress was doing something with the second clause. it was trying to overturn the gilbert situation where you had an employer that adopted a policy that as a formal matter treated pregnant people the same way it treated non-pregnant people. if you were pregnant, but the reason you weren't able to work was an on-the-job illness or injury, they would have given you benefits. what the court said in the gilbert case was that's not discrimination, it simply doesn't include pregnancy but pregnant women aren't fenced off. what this statutory text does is

it says no, employers have to treat pregnancy related conditions as favorably as they treat non-pregnancy-related conditions and that's how this court has read it. in the newport news this court said it's discriminatory to treat pregnancy-related conditions less favorable than other conditions. and here there are other classes that it provides accommodations to is treating pregnancy-related conditions less favorable than others. >> you do assert it's a most favored nation provision. you have to give the benefits that you give to any other class of employees right? >> to any other class of employees. >> it doesn't matter whether that class is enormous or small right? >> i think this is text that obviously requires some degree of interpretation. i think your honor articulated one way of thinking about it which was providing this accommodation or benefit to employees generally, and

certainly when an employer provides accommodations or benefits to such large classes of employees who are not pregnant -- >> but does the record show what you have asserted here that the classes that are given special treatment is almost everybody? >> i think that we have -- >> does the record show that? >> i think the record is sufficient to show that. remember summary judgment was granted against us. >> i understand. >> yes. so i think the record is sufficient to show that in the following sense. number one obviously there is all the on-the-job injuries which ups acknowledges they provide accommodations for. number two d.o.t.-disqualifying positions that ups provides accommodated work for we have provided work similar, and they haven't pointed to, in its briefing here any driver with a similar lifting restriction as peggy young who was not pregnant -- >> you can win your case with

that argument. perhaps. assume that. but that isn't going to help me which i'm rather selfish about. because my job here is to write what this statute means for a lot of cases and writing the words, what it means is if you give a lot of benefits to a lot of employees but not to the pregnant women, and you don't give it to some employees and not to the pregnant women, and the employer says look pregnant women are like the few we don't give it to not the lot we do give it to employer, you lose. but by the time i've written that into the u.s. code nobody knows what i'm talking about. i need to know how to interpret the words such that they would do, in your view, what you want them to do which is just what i said. >> yes and i think the

important point is, if an employer provides accommodations as a matter of policy to a class of employees who are not pregnant, who are similar in their ability or inability to work to the pregnant plaintiff, and does not provide the same accommodation or benefit to the pregnant plaintiff, it is violating the plain text of the statute which says women affected by -- >> so you're coming down to most favored. and that makes sense and he can write that down in his opinion. >> but, unfortunately, it takes out of what you just said, the fact you give them to a lot of employees. you could have a most favored nation that was two employees including those who have only worked there for 40 years and have huge seniority. those are the words that i'm -- >> i understand, and that's why i think this may be an easier case -- >> basically, what you're saying, if i understand it is it's okay to differentiate on the basis of anything but source, which means whether it's

work or non-work-related. you're reading out of the history, the fact that congress repeatedly said we're not forcing employers to give benefits for non-work-related injuries, but we're going to write it so they have to, anyway. >> i don't think there is any statement in the legislative history that says we're not forcing employers to give benefits for non-work-related injuries. there are three statements in the legislative history that respondent draws a negative inference from. >> i'm so relieved. >> respondent draws a negative inference from today. obviously congress didn't mean to do that but to return to justice scalia's response there, the point is the text contains no such limitation. on-the-job distinctions were certainly known to congress when they adopted this statute. in fact, gilbert obtained a policy that contained on-the-job

distinctions. if they had said the same requirement for on-the-job and off-the-job distinction, it might have saved some time. if i may reserve the balance of my time. >> certainly. general verrilli? >> the second clause of the pda advances that interest in a narrow but important way. i say the second clause is narrow because it is not a freestanding accommodation requirement like the religious title 7 or like the ada, and i say it's narrow because there is only one thing an employer can't do when it affords benefits or

accommodations. it can't draw distinctions that treat pregnancy-related medical conditions worse than other conditions with comparable effects on ability to work. >> that wasn't the position the government took in the u.s. postal service policy. we are told that the government defended a policy that is, for all intents and purposes the same as united parcel service. and more than that, some briefs called petitioner's position frivolous, contrived. that was the government's position, so will you explain how the government -- the postal service still retains as far as we know, the exclusion of pregnant women. >> of course, justice ginsburg. it is correct that they imposed

practices that ms. young makes in this case. we acknowledge that in footnote 2 in the brief to this court. since then, however, the eeoc has issued guidance, and that's a very significant fact. congress has charged. eeoc the -- the eeoc the purpose to force it. >> so we give -- what do you call the other kind? gee, you give that to me even when i'm in dissent. that just means treat it for what it's worth. >> the eeoc sets the enforcement policy for the federal sector with respect to this issue. that's a significant fact. we took it into consideration in deciding what the position of the united states should be. >> would your position here be the same if the 2014 guideline had not been adopted? >> we didn't take that position

before the 2014 guideline had been adopted, justice kennedy. i just don't know how to answer that question because we took the position in light of the guidance it adopted in 2014, which we do consider to be significant and we do have to weigh our interests as enforcer of the law as well as employer. we did so on a considered basis and we came to the judgment that we thought was the correct judgment in the meaning of the statute. >> we don't give you any more deference than we give to the eeoc right? >> with respect to this, i think the court has to decide what the best reading of this is. if i could turn to that, and hopefully in doing so i'll answer your question justice scalia, and your question justice kagan. we think the one thing an employer can't do as a result of the second clause is draw distinctions that treat pregnancy-related medical conditions worse than other conditions with comparable effects on ability to work.

it's that single thing. and so seniority full-time work, different job classifications, all of those things can be permissible distinctions for an employer to make to differentiate one who gets benefits. as for the textural basis i'm looking at the statute here which we've got page 12 and 13 of our brief, and it's also in the last page of the petition. it says -- what it says is that among the class of people who are comparable in their ability to work -- in other words similar in their ability or inability to work as the statute says, women with a pregnancy-related medical condition -- in other words women affected by pregnancy, child childbirth or other medical condition as the statute says cannot be treated worse on the basis of their condition, and that's what we think treated the same means in the statute, than other workers with non-pregnancy-related medical conditions that impose

comparable limitations. those are other persons not so affected. >> would you give me your interpretation again? you altered the phrase in saying -- the words you added were -- >> on the basis of their condition. and the reason we think that's the sensible and best reading of this statutory text is because this is focused on the condition and not the person. >> at the very beginning, you listed three things that you said were reasonable distinctions. because the word i'd like you to focus on is other workers and the problem is which other workers. because it is easy to construct hypothetical cases where the work employer treats some other workers the same as the statute and doesn't others. and which distinctions are reasonable and which ones are not, and how do we tell? >> i'd like to make two points in response, justice breyer.

the first about the nature of the title 7 claim, and second about the nature of this type of anti-discrimination provision. with respect to the first i think it's helpful to differentiate between a direct claim of íksemq ñdiscrimination disparate treatment, such as a claim in the donald douglas framework. without going through the donald douglas analysis, you have to show an employer offers an accommodation to a significant class of employees, and that that accommodation fails the test i described earlier. it's got to be a significant class. we think this case, we think that's going to be most cases, but in the kinds of examples that your honor identified the one guy driving across the mountain, for example, i think you would have two issues there. first, when it's one person, you're not going to be able to make a direct case. you go through mcdonald douglas, and the employer may well have an explanation for that

accommodation that would take it outside the source of the disability limitation and mean there's no liability. with respect to that example, there is a second point to be made i think which is that person who has to drive the particularly dangerous route for example, may well just be in a different job category and therefore not similar in ability. >> i would think those types of cases that present the starkest example of discrimination on the basis of pregnancy, the idiosyncratiy one, yes he's doing that, he's doing this. and then the pregnant woman comes in with an isolated issue. >> i guess what i would say about that is you could certainly bring a mcdonald douglas claim against the idiosyncratic difference, but then if the employer can show this was not the criterion that the epa would forbid, then the accommodation is fine, there is

no vilsolation. >> i use the 4q> yes, of course. let me get to the second point i wanted to make in response to your question and after that i'll try to give you a very

specific response to what you just asked me. it is true that some classes are going to be in and some classes are going to be out, but that's how discrimination law operates. if an employer is discriminating against women in promotions the fact an employer is also discriminating against overweight men in promotions doesn't make the discrimination against women any less actionable because it just reflects the choice congress made about whom to protect and whom not to protect. and here the choice congress made about whom to protect and whom not to protect is the choice to protect women who have pregnancy-related medical conditions. that is the congressional judgment here. they didn't choose to protect everybody who gets injured off the job, they chose to protect those with pregnancy-related conditions. >> if you have a disability outside of your appointment, they give benefits for one month, and it applies that same policy to the pregnant women. is that a violation of the statute? >> i think the pregnant women

would be entitled to the one month, but nothing else. >> why isn't that the discrimination basis? >> because the statute requires that people be treated the same. so the pregnant employee would be treated the same under those circumstances. >> but not if there was a separate category of people who were entitled to benefits for more than one month. >> well, the question would be whether those benefits whether the distinction, whether the disentitlement of the pregnant employee was based on the source of her condition namely pregnancy. if it's based on something else like seniority or full-time status, then of course -- >> would you please answer my question, which was do you mean source means on the job and off the job? is that what this case revolves around? i don't know what source means. >> briefly. >> yes, mr. chief justice briefly. i think that on the job versus off the job, that distinction goes to -- inevitably goes to

the source of the impairment, and of course pregnancy will never qualify under that standard, but this case is not just about on the job versus off the job. it's about ofñ(v# wq÷ the job versus off the job plus the d.o.t. certification category which can include those who lose their d.o.t. certification and can't drive because of physical conditions other than pregnancy that prevented them from doing the job they had to do, which included lifting, and the d.o.t. manual which the petition cites on pages 6 and 7 says exactly that. thank you. >> thank you, general. ms. hallion? >> justice pryor, you are exactly correct. had the petitioner believed that the policy that ups applied which was to provide accommodations to employees who are injured on the job but not to provide accommodations to any employees who sustained a condition incurred off the job, she could have brought a

disparate impact claim. we do not believe she would have succeeded. she could have, but she did not. she brought one later in the day. it was dismissed by the district court because it had not been exhausted -- >> could we talk about the claim she did bring? >> yes. >> your reading of the statute basically makes everything after the semicolon completely superfluous, and i think you would agree with that, wouldn't snu. >> absolutely not, your honor. the reading we proposed is very straightforward. what congress said in the second clause, the key words are "the same as other persons." what "other" means is simply distinctive of whatever else is first. so they have to treat pregnant employees the same as other employees with an inability to work. >> that's what the first provision does when it says pregnancy is the same as sex, when we say because of sex, we also say because of pregnancy all of that would be taken care

of by that clause. >> this court explained in newport news, as well as in cal fed that the function of the second clause is to explain how principles apply to pregnancy. the reason they had to do that was to repudiate the law -- >> so what you're saying is not doing anything new, it's only explaining the old stuff. >> i'm not saying that, your honor. what i'm saying is that in a pregnancy discrimination case instead of comparing women with men as you would in a typical sex discrimination case -- because what the first clause does is bolt pregnancy onto sex discrimination. so if you compare women and men in a pregnancy discrimination case where you have a policy that facially discriminates against pregnancy, you will nonetheless conclude there is not sex discrimination because there will be women who are pregnant in the disfavored group, but there will also be women who are not pregnant in the favored group, along with men. >> i think again that's not necessary, because all of the

inquiry is were you discriminated against because you were pregnant? yerks i was yes, i was, no, i wasn't. you don't need all this other stuff about kind of double redundancy. it's everything past the semicolon is redundant, but then moreover, the key words here, which is, other persons not so affected by similar in their ability or inability to work. that become redundant even within the redundancy. >> i think to the respond to the last point first and then the first. what petitioner's interpretation and the government's interpretation would do is to actually rewrite those words in one of two ways. initially petitioners seem to be suggesting that if a plaintiff could identify any other single employee who was accommodated, that the pregnant employee would be entitled to the same accommodation. what that would mean is the statute would have to read, the same as any other person. it does not. now petitioner and the

government are both suggesting that the only restriction that this bars is a restriction based on source. any other restriction, rank, seniority, status, outside legal obligations, are acceptable. but it doesn't contain any of those words. >> that is the question that this language raises, right? which is why source? but why not a seniority limitation or something like that? so could i give you an alternative way to understand what the statute is doing? which is that -- what we ought to be thinking about is mcdonnell douglas. in other words, this -- it provides the comparator. it says an employee can find a class of people who are being given an accommodation notwithstanding that those people are similarly situated with respect to work. an employee points to that class. and then in a typical mcdonnell douglas fashion, the employer

comes back and says, no there's a good reason why i'm treating that class differently. that has nothing to do with pregnancy. it has something to do with, i always treat more senior employees differently. or something like that. at that point, if the employer makes his case, the employee gets to come back and say, no, that's pretext. and just the way we do with every other discrimination case. and that's what this is all about. it's identifying the comparator that the employee has to identify in the first instance in order to shift the burden to the government to come back with a reason. >> i think the second clause is highly relevant to the question of comparators. but not in the way that you're suggesting. what the second clause does, as this court has laid out in newport news and in cal fed is to explain that when you are making those comparisons that you don't look at women and men. which is what you might do as this court did in gilbert because it's sex discrimination

that you are actually -- >> that's the first clause. but instead of talking in the abstract, do you give me any example of a case that a plaintiff would lose under the first clause? >> i'm not -- >> putting pregnancy together with sex. >> i'm not sure that you could. but that wasn't the function of the second clause. >> then you are saying, second clause adds nothing, even though congress said "and." one clause includes pregnancy, and something in addition. but you're saying it's not really in addition. >> i think that grammatical connector is very important in understanding how the two clauses relate for the following reason. petitioner's construction would read the first clause out of the statute entirely. the words in the first clause are "because of." and this court has consistently understood those words across protective trades to require that discrimination in an

intentional discrimination case, that you have discrimination that is actually motivated by the protected trade. if the second clause does the work petitioners suggest, even if you could find the word source in that, which it's not in the text, it would mean that you don't need to show that the protected trait pregnancy actually motivated the adverse treatment. so his construction would read that out of the statute entirely. >> ms. halligan, what's wrong with my middle ground? it's not that mr. bagenstos and the general's ground. because eight hows the employer to come back and say i have a legitimate policy based on seniority. or even i have a legitimate policy based on the source of the injury. but it does put that as a question. whenever an employee is able to point to a similar -- to a class of people who are granted the disability accommodation, who aren't pregnant. >> i just don't think it has any anchor in the worth of the statute itself. the words are -- >> it's quite the opposite.

it basically gives a function for what the key words of the statute are other persons not -- or not so affected, but similar in their ability and inability to work. what is that doing? what it does is, it points to the comparator that says off the mcdonnell douglas test. that forces the employer to come back and give a reason for why it is that this ought not to be taken as discrimination against pregnancy. >> i think this court's been clear that the function of the second clause was to repudiate that logic which equates when you look at men and women, when have a pregnancy clause that discriminates on the basis of pregnancy you say that's not sex discrimination. but what would also do is to collapse the distingds between disparate treatment and disparate intent. this court has been clear that that is an absolute line. it says so in raytheon. congress tracked that distinction in the 1991 civil2a56g

those who have an illness or injury? >> i'm not sure it would have. i'm not sure it would have precluded the court from using the same logic that was at play in gilbert itself. and that's why those words are there. >> so the reason for the language after the semicolon because you have to go further in order to produce a different result from gilbert.

if that's correct, can you explain what you think the language after the semicolon means? >> i think the language after the semicolon instructs that when you look at a policy that discriminates on the basis of pregnancy what you would typically do in a sex discrimination case is to look at how women and men are treated. if they are treated differently, you would conclude that there is sex discrimination. what this clause instructs is when you look at a policy that discriminates on the basis of pregnancy, rather than looking at women and men, which will lead to you the conclusion that there's no sex discrimination, because all the nonpregnant women are -- >> that's what the first clause does. it says, pregnancy is sex, period. you will have already said that you don't think that the second clause does any practical work. that is you can't conceive of a

case where a plaintiff would lose under clause one and win under clause two. >> well, to be clear, your honor, the reason the second clause is there is to avoid a case in which a court uses the same reasoning and reaches a different result. this court also attached special significance to the second clause in johnson controls. it says that the second clause provides a b.f.o.t. for pregnancy specifically. it does that work as well. what the petition suggests is that the second clause somehow permits any distinct except off the job versus on the job. that's a distinction that is long standing. >> but you don't know where -- i'd like just to go back on this very point to which justice kagan said. the mcdonnell douglas test, i think, should come in somewhere. that is, the woman shows that i'm pregnant. i couldn't lift.

and other people who had comparable inabilities were paid. and so we get to, was i qualified like they are? and now a distinction is being made. the employer says, no, you're not because you didn't drive over the mountain pass or, no you're not because you nodded off the job. and then we have to decide is that a pretext? is it legitimate? and were they giving it to everybody else and there are very few, it doesn't sound too legitimate. but that test must come in. >> it does. >> and so how does it? and does it matter if we put it under the first so-called -- whatever, you know, intentional as opposed to disparate impact? where we muck up the law? were we to say it goes in that part rather than the other part or both parts? >> well, i think if i can, this court has been clear that mcdonnell douglas provides a mechanism for providing indirect

evidence of disparate treatment, of intentional discrimination. so it's distinct i think from a disparate impact case where as here you have a facially neutral policy. a policy that says on-the-job gets accommodation when they can't perform the essential functions of their job. anyone with a injury or condition that sustained off the job doesn't. when you have a neutral policy like that, can you bring a disparate clause -- >> why not if it goes under disparate treatment? >> pardon? >> why not? because of course the employer will always have a facially neutral policy. it just turns out that this facially neutral policy happens to hit the pregnant women and four other people. >> if -- >> i mean, that's kind of thing that we're trying to stop in this statute. so why not bring it in there in the disparate treatment part, as you say.

>> two answers, your honor. first of all i think that distinction between a disparate impact claim where you're looking at the adverse effect on a certain class of employees, but you have a facially neutral policy has been quite -- as distinct from a policy that discriminates on its face either directly or indirectly -- >> suppose i -- that's exactly what justice breyer is talking about. suppose you had a policy that said we're going to provide accommodations for anybody with a non-occupational sickness and accident. very similar to gilbert, but without all the other facts of gilbert. we're just -- it's a facial policy, we're going to provide accommodations but, of course, pregnancy is not a nonoccupational sickness and accident. so, as a result of this facially neutral policy, pregnant women

will not get accommodations. now, as i understand what you are saying, it's -- that's perfectly fine. >> if a policy distinguishes between occupational injuries and nonoccupational -- >> yes, this is nonoccupational sickness and accident. >> that would be acceptable. and what a plaintiff who believed that nonetheless there was intentional discrimination, what they would do is they would, under mcdonnell douglas they would first of all, attempt to make a prima fascia case by showing that other employees who were similarly situated were being treated differently. the comparators that the petitioner points to here are not vol id because they're not similarly situated. >> you're departing radically from the fourth circuit view. the fourth circuit did say right up front that this clause standing alone is unambiguous. if a group of employees get the benefit, if other employees get the benefit, so must pregnant women.

that's the fourth circuit saying yeah, that's what it is just standing alone. because it would lead to untoward results but preferential treatment we're not going to give it. >> the fourth circuit realized that the two clauses have to be read together. and, in fact, to read the second clause as petitioners suggest, just read it out of -- justice kagan, to back to your question, what an employee could do in that circumstance is to say the policy doesn't treat similarly situated employees the same as me. it treats me worse. the comparators here were not at all congruous. the first set of comparators were individuals who were accommodated under the ada. the government realizes that they're not similar. >> that's where we disagree. because what this tells you is it tells you what the comparators are. the comparators are any class you can come up with who is -- has the same disability and isn't pregnant.

and then, the employer can come back and say, no, we had a good reason to treat that class of employees differently. and if you buy that with respect to the gilbert distinction, i don't understand why you wouldn't buy it with respect to any other classification. >> because all the second clause is telling you, and congress was clear and this court was clear, that the pda of both clauses in its entirety were not intended in any way to depart from traditional title 7 principles. it was simply to correct the fact that pregnancy could affect discrimination. >> we absolutely know what gilbert was said was that kind of policy was legitimate. and that congress came back and said, no, that kind of policy is illegitimate. right? >> it said two things, it's illegitimate in the first clause and it said you cannot when you are trying to ascertain if there's sex discrimination with a pregnancy policy break it down into women and men. because you won't get the result congress wants. congress says when it's facially

discriminatory on the basis of pregnancy, that's sex discrimination. the comparators do have to be different. you're correct. it's pregnant employees and nonpregnant employees. >> as i understand the answer to my question, and tell me if i'm wrong, is you're saying with respect to a facially neutral policy, as to nonoccupational sickness and health, that you think that that is illegal under the pda? >> no, it's legal under the pda. a policy that -- >> i'm sorry. >> a policy that distinguishes between occupational and nonoccupational injuries and is evenly applied is absolutely permissible under the pda. >> even if it's -- it's exactly the policy that's in gilbert. and you're saying that's fine? >> no. the policy in gilbert singled out pregnancy -- >> no, it didn't. there were a lot of other things that got excluded in gilbert. if a man had a vasectomy, it got excluded in gilbert. if somebody got into a bar fight, it got excluded in gilbert. if a person got cosmetic surgery, it got excluded under

the policy in gilbert. gilbert was about much more than singling out. >> this court and congress clearly described the policy in gilbert as singling out pregnancy. that's why congress enacted the pda -- >> it enacted it to overturn gilbert. everybody -- >> it's -- >> not from some abstract theory, but the result in gilbert. and as justice kagan pointed out, gilbert was a case where you could point to a lot of other people who were not getting this benefit. >> one of the -- the result that petitioner and the government suggests, which is instead to say that you can have any distinction you want and it's permissible under the pda except on-the-job versus off-the-job is far more contorted. that's a distinction that's now in workers compensation law. >> is it true, essentially, that you said that young's position is most favored nation. yours is least favored nation. >> it's not least favored nation.

the question is, is there another distinct group of employees who are treated the same as the petitioner. and here there are. >> this case went off on summary judgment so the fact that mr. bagenstos has told us that there is not in this record a single instance of anyone who needed a lifting dispensation who didn't get it, except for pregnant people. and if that's the case, in fact, then you lose, don't you? >> well, i would like to address that because i think that's a real mischaracterization of the record in a couple of ways. first of all, the district court held squarely that the effort by plaintiff to characterize this policy as no light duty for pregnancy was wrong. what the district court said -- this is at page 59-a, the actual on-the-job was ada accommodations -- >> but do we know, in fact, this

is an allegation that, in fact, no one who wanted a dispensation didn't get it except pregnant women. >> that is also contradicted, your honor. >> we're on a summary judgment stage, so we don't know what the facts are. >> but we have to look at the uncontroverted evidence. there is uncontroverted testimony in the record and i would point to you mr. martin and mr. brian's testimony, there were many employees who sustained off-the-job injuries. and the district court held specifically that no light duty was given to any employees, male or female, with any medical conditions not related to work, pregnancy included. page 56-a. >> give an example, then. is there an employee who asked for dispensation because of a medical condition that restricted her ability to lift? to any single employee but employer said, sorry, you don't get it because your injury was off duty. >> there's not a name provided

in the record because one was not elicited by the petitioner whose burden it was in building a prima fascia case. but the record evidence was undisputed there are many employees who sustained off-the-job injuries. it's unsurprising. u.p.s. is in the business of delivering -- >> they suffered off-the-job injuries but we don't know if they asked for dispensation because off-the-job injury required that they limit the weight that they could bear. >> the district court held that u.p.s.'s policy is that employees who are unable to perform the essential functions of their job would be required to take leave if their inabilities stem from something off the job. and in a business that involves moving 70-pound packages around all day long, it is certainly the case, as the uncontroverted testimony established, there were many employees who sustained an off-the-job injury that prevented them from doing that job. >> i assume that you disagree with the petitioner's proposition that when you take

these three classes -- namely, off-the-job -- i'm sorry, on-the-job injuries, ada injuries, and -- what was the third one? yeah, yeah. disapproved as drivers by d.o.t. there is almost nothing left. that's what -- >> we absolutely disagree with that and there is nothing in the record which suggests that. it is completely without citation or support and it's completely controverted by the testimony there were many employees who did sustain an off-the-job injuries. with three narrow exceptions, absolutely, the three that you identify. but every employee that the district held court sustained and off-the-job injury, turned their back, hurt their knee, whatever it was, couldn't come in to work, were not

accommodated with the type of light duty -- >> why shouldn't there be a trial on that or further proceedings? if it turns out that they're right, there were four people who weren't pregnant, and that's all, who didn't get the benefits, that's pretty strong evidence that the employer is discriminating. if there were 400,000 people who got the thing off the job and there were only like 19 people on the job who got the benefit, then you have the better case. why don't we have to look at the facts? >> first of all, your honor, that would be relevant to a disparate impact claim which the petitioner did not bring. secondly, there was extensive discovery in this case. there was summary judgment granted with uncontroverted evidence that establishes exactly the opposite of what you're suggesting. so there is no need to do that. this is a very straightforward case and but for the effort by the petitioner to bring the record back into play at this late date, none of this would be something that you would ever consider. >> is there really a dispute about this? maybe petition's counsel to address it in rebuttal. is there really a dispute that

if a u.p.s. driver fell off his all-terrain vehicle on the weekend and was unable to lift, that that person would not be given light duty? is that really -- >> the district court made a square finding exactly to that effect at page 56a and page 35a. i would also direct you in our red brief to page five where we set forth miss martin's testimony that she never authorized an accommodation for anyone who was injured off the job. so that's there as well. i'd like to turn briefly, if i can, to the question of the eeoc guidance that the solicitor general -- >> but there are individuals who are injured off the job who lose their d.o.t. licenses? >> there are individuals who lose their d.o.t. certification pursuant to the collective bargaining agreement. they are accommodated for some period of time. >> but those jobs, those

individuals who lose their d.o.t. certification, are not light duty jobs. those are heavy-lifting jobs at district court squarely held. the district court at page 36a and 59a said inside jobs are not light duty jobs and individuals who lose their license can perform any number of demanding physical tasks which miss young could not perform. so they're not comparable in that regard either. with respect to the eeoc guidance, the guidance which was issued two weeks after this court grant certiorari in trying a 180 degree change from the position that the government has consistently taken and the postal service which the u.p.s. barely looked to in trying to ascertain what appropriate conduct was under federal anti-discrimination laws, the policy that it still has in place today. in addition, the process in issuing that guidance was incredibly rushed. it was not until 2012 as one of the amicus briefs point out that

the eeoc even identified the question of pregnancy accommodations as an emerging or developing issue. there was no notice in comment. >> the original guideline, as i understand eeoc, what they did in 2014, is that we were -- all we're doing in 2014 is explaining what the original -- was it '79? >> '79 guidelines simply mimic the language of the statute. in 2012 the eeoc in its strategic plan said it was looking at addressing the very issue that it opined on in the 2014 guidance as emerging. if the 1979 guidelines stood for what petitioner suggests, there would have been no need to treat it as emerging. it would have been settled 30 years ago. finally, i want to point out

that this is an area where the democratic process is working as it should and as this court instructed it should in cal fed. in cal fed this court looked at the question of whether or not state statutes which provided preferential treatment to pregnant employees, the statute there provided extra leave and reinstatement rights to pregnant employees was preempted by the pda. the court said the pda sets a floor. that floor is that you can't single out pregnancy for adverse treatment. states can go beyond that as additional and new challenges are identified. >> well, for the democratic process to work as it should, the pda has to be given a fair reading. what we know about the pda is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. it was supposed to be about ensuring that they wouldn't be unfairly excluded from the workplace. what you're saying is that there's a policy that accommodates some workers but puts all preg nan women on one side of the line. and what you're further saying

is that the employer doesn't even have to justify that policy, a la mcdonnell douglas. that seems to me a reading of the statute, the pda, that ignores two-thirds of the text. >> i'm not saying that the employer isn't subject to a suit under mcdonnell douglas. i'm saying that there are no valid comparators here. that's all that we're saying in that regard. >> essentially is there any group that doesn't get the benefit? a group that non-pregnant. only pregnant people are. any group at all. >> if you had a policy, i'm not sure what one would look like, that singled out pregnant employees plus one other employee, my guess is -- [ inaudible ] the policy that's at issue here justice ginsburg distinguishes on-the-job versus off-the-job injuries. that's a distinction that's

echoed in state and in federal law. that's a far cry from a policy that singles out pregnant women. >> there are only nine states. >> -- is what the first -- >> or targeting or otherwise primarily disadvantaging. that distinction tracks what workers comp requires which is payment for employees who are injured on the job and many employers, including the u.s. postal service, found it advantageous to provide light duty accommodations so their employees can be at work while they're rehabilitating, and provide some productive work for the company. that distinction is as legitimate as you could get. i see my time is up, your honor. >> thank you, counsel. mr. bagenstos you have four minutes remaining. >> thank you, mr. chief justice. i'd like to begin if i could with the facts. justice alito did ask and yes, we certainly do disagree with u.p.s.' assertion here. this case was on summary

judgment and u.p.s. does point correctly to some very general statements in the record by u.p.s. managers that they never authorized these accommodations. however we point to specific people with off-the-job injuries or illnesses who were d.o.t. decertified who were given accommodations that not just removed them from driving but removed them from heavy lifting. that's a factual dispute that has to go to trial. >> you really think that you could prove at trial that if somebody is injured in a recreational activity over the weekend, that they get light duty but a pregnant woman does not maybe? >> if someone is injured over the weekend in a way that leads them to be d.o.t. decertified, yes. in fact a u.p.s. manager so testified about a sports injury. we cite that in our opening brief. so yes, we think so. the second point i'd like to make is about what the two clauses do. i think this is very important. the first clause of the pda, as this court has said in newport news and cal fed, overturns the reasoning in general electric v. gilbert. what the first clause says is

where gilbert said, look, discrimination based on pregnancy isn't sex discrimination because there are pregnant women and non-pregnant persons. that's wrong. instead because of pregnancy is because of sex definitionally. that's not what the second clause does. that's what the first clause does. the second clause as this court said again in newport news and cal fed goes further and overrules the holding. i think justice kagan was exactly correct in describing the facts of gilbert that the gilbert holding would not be overturned under u.p.s.' reading here, because the gilbert policy, the one thing we know that congress meant to say was illegal. the gilbert policy itself acted -- drew lines in pregnancy neutral ways. it said if you have an off the job injury or accident, defined as an accidental injury then you get disability benefits. it just so happens pregnancy isn't an illness and pregnancy isn't an accident in the sense of an accidental injury. what congress we know congress was trying to do because congress said it and this court

has said it is to overturn the holding there. but u.p.s.' rule simply reprises the rule at issue in gilbert. if i might return to the point justice breyer's made a couple of times at various points in the argument. >> actually, i think the reverse. the second sentence is what does that. the second sentence says you don't worry about whether it's between sexes. you worry about whether the same class of people, people who are injured off duty, are being treated differently. >> well, i think -- >> when they have the same ability to work. >> i think, justice sotomayor, the first clause says you don't worry about whether they're the same sex or not. >> you do have to worry about it. because it still has to be sex discrimination. >> the first clause definitionally defines pregnancy discrimination as sex discrimination. if you are discriminating because of pregnancy, that is because of sex. and that's the -- that's overturning the gilbert reasoning that pregnancy discrimination isn't sex

discrimination. the second clause goes further, as this court has explained, and overturns the holding, overturns the holding upholding the general electric policy. and so i think under u.p.s.' rule, it wouldn't do that. on justice breyer's question, basically how do we deal with a world where there's an employer that treats two different groups of people who are not pregnant differently. shall be treated the same means shall be treated the same as those who get the better deal or those who get the worse deal. right? i think justice ginsburg and justice kagan articulated this well, that their position really would give least favored nation status to pregnant workers. we know that that can't be something that congress intended. we know that in part because of what general verilli said. that that's not how anti-discrimination law works. the fact that someone else was discriminated against doesn't mean a lose. justice alito's opinion for the third circuit in the fraternal order of police for newark qasr tick lates the same rule. we know that because the purpose of this statute to say to

employers, as justice kagan said, you have to treat pregnant workers as just as valued employees as anybody else. if you think it is valuable to keep these employees on the job who are injured on the job because they keep valuable knowledge within the company, do that for pregnant women. >> thank you, counsel. case is submitted. saturday barbara bush daughter of george w. bush and a panel of other young adults, discuss the issues that motivate their generation. they explore the new way so-called millennials are engaging their community. here's a portion of her remarks. >> i guess what's the one issue that is most important? >> my goodness. so many. well i think that it gets back to the millennials. not a one-word answer. i think we all have issueses that are important to us. and important to our

communities, and important to where we live, not saying that there's one issue that is important, because there's so -- every issue is connected. and figuring out how to have a bigger lens thinking about solving each issue. and my last thing which is to copy your question to her is i never really understand why older people are like, well i don't understand millennials. you can ask people what they're interested in. you can ask them, you know how they want to communicate and how they would want to partner with you. and i think instead of kind of categorizing one group as this elusive group, we all have the power to make relationships with people. >> the new america foundation hosted a discussion by young adults concerning the issues that motivate their generation. you can see it saturday 8:00 p.m. eastern, on c-span. fbi director james comey says one challenge in the isis fight domestically is that the

agency is having trouble compiling an accurate profile of those americans who decide to take up arms with the terror groups. comby added that the age range is pretty wide. his comments came wednesday before the house appropriations subcommittee on justice, where the director defended the agency's 2016 budget request. this is two hours. >> the commerce justice science appropriations subcommittee will come to order. it's a privilege to have with us today the director of the fbi

jim comey. we're delighted to have you with us today, sir. i want to also before we start take a moment to recognize our newest member, mr. palazzo from mississippi. we're delighted to have you with us, steve. i know you under the circumstances rather not be. we miss allen a great deal but we're glad to have you. very pleased to have with us, chairman of the full committee. good to have you with us. and we are going to go ahead and crank it up. this is a particularly appropriate today to have you with us, mr. chairman, because the 9/11 commission has issued its findings this morning and we'll talk a little bit about that today, but we're privileged to have you with us here, in front of our subcommittee to present your 2016 budget request. it is a very important, complex, critical mission that the fbi has to perform.

we have on this subcommittee over the years helped the fbi fulfill its mission, you're the lead agency in domestic anti-terrorism, counterintelligence, national security efforts, vital law enforcement effort and as you mentioned the other day, i had -- i knew this instinctively, but you made the connection with me, once criminals got a hold of automobiles and can cross state lines and someone can hold up a bank in three different states in the same day, it suddenly made the role of the fbi in fighting crime very, very important to the congress in the 1920s and '30s. and your role has only grown over the years, and particularly in light of the 9/11 attacks, the growing danger of cybercrime, the ongoing cyberwarfare that is taking place and visibly, against the united states, and private industry.

your role in fighting human trafficking and financial fraud is just vitally important. and we have responsibility to help make sure you can do your job and be sure that our constituents' hard earned tax dollars are wisely spent. we want to be sure in the budget request that you submit today on behalf of the fbi and the president that the subcommittee wants to be certain that our -- that we scrubbed your budget and done everything we can to make certain that, again, our constituents' hard earned tax dollars are wisely and prudently spent. particularly on a lot of tremendous budget pressures we face in this very difficult budget year. the report that was issued this morning by the 9/11 commission, we're pleased to see the progress is the fbi has made in transforming itself as well as -- in light of the continuing challenges posed by terrorism and other global threats, on particularly thank the members of that commission ed meese,

former attorney general, tim roemer, former congressman and bruce hoffman with georgetown university, for -- commission was put together at the instigation of my predecessor frank wolf and the report is comforting to see the progress that the fbi has made in transforming itself in light of the 9/11 attacks. we'll be working through some tough questions in today's hearing, mr. director, and we want to make sure that the investments we make in the fbi have a real impact on enhancing national security and reducing crime. we deeply appreciate your service to the nation. and i would like to recognize mr. fattah for any comments he would like to make. >> let me thank the chairman and thank the director for being with us today. you said recently that we have -- in every single state, the bureau has active investigations around terrorism.

and obviously it is a major concern given the activities taking place in all parts of the world. part of the big discussion in the 9/11 commission was whether or not how we kind of recalibrated ourselves to deal with these challenges because it was about catching people after they had done something wrong. in the case of terrorism, it is really a much different approach where you're trying to prevent something catastrophic from happening by people who in many instances had no desire to get away. so it is a much different, you know, circumstance. so it would be interesting as we, you know, talk about cybercrime, which is a big deal, and, you know, a lot of these other issues, obviously this is something that from a national government perspective the decision of the commission was that we should not have a kind

of a terrorism only entity that the fbi was quite capable of dealing with this challenge. and the bureau has proven to be. but you also faced criticism from some of the processes that you had to utilize, which in some cases, the question of whether or not people who are espousing ideas or taking no action, you know, where they lie in fault. would be interested in your comments. obviously your budget and the appropriations, the committee as it has in the past, will do everything necessary to make sure that you are -- have the support needed to protect the country. because you're really not trying to protect the fbi. trying to have the fbi protect the nation and so we have a responsibility to find the resources, but i will be looking forward to your comments on the subjects that i raised. thank you, mr. chairman. >> thank you. >> privileged to recognize the chairman of the full committee, mr. rogers from kentucky. >> thank you, mr. chairman.

mr. director, welcome. and to your staff. i was looking at your resume, your work record, prosecutor. i did that for 11 years myself on the state level, state district level. so i commend you for your education and your experience in that regard. pardon my raspy throat. i have caught it. the chairman rightly said that fbi has a critical mission in protecting the homeland. and frankly the charge of -- to the fbi has changed absolutely dramatically over the last decade or so. when i first came to congress in 1981, you know, we were focused on catching the armed robbers and all of that.

but now, it is such a sophisticated and complicated new charge that you have dealing with counterterrorism, hostile foreign intelligence agencies, espionage, domestic and foreign cyber threats. cyber is a new word. now it is a new challenge. and then, of course, the traditional catching of crooks and thieves and dangerous criminals here at home, particularly drug related. and especially prescription pill attacks that the cdc says is a national epidemic. so you have a hefty load. and you were going to try to give you what we can afford to help you fight all of these

charges. and it won't be enough. but there is a limit on what we can appropriate. we are confronting an extremely difficult budgetary climate here. in fact, we're debating today on the floor the budget, which is severe and strict. it stays within the -- the sequestered levels. so we're not dealing with a lot of new money, hardly any. it is extremely important for you and others like your agency, which relies so heavily on intelligence information to leverage and maximize the partnerships forged at the local, state and even international level to ensure that every penny the taxpayer spends is targeted, efficient

and effective. in fact, last week i visited with the interpol headquarters over in france. my second visit with them. and in the last several years that agency has grown. when i was there the first time, 10 or 15 years ago, the difficulty i saw at that time that our agencies over here were not participating in interpol as they should. now they are. and it is imperative that we continue that work with interpol as i'm sure you will agree. you have been taking strides in recent years to streamline and optimize your intelligence components. but i think we can all agree that much work is still to be done there. last year you requested and we granted permission to

restructure the fbi's intelligence program to more seamlessly integrate intelligence and operations and i hope you can provide us with an update on those efforts in a minute. particularly as we all begin to assess the report evaluating the fbi's implementation of the 9/11 commission recommendations. finally, i want you to provide the committee with some information about how the bureau is working to combat the threat of home grown domestic extremism. isis has demonstrated very sophisticated recruiting techniques through the internet and social media and by some accounts as many as 20,000 fighters have traveled from 90 different can countries to fight

in syria including some 150, i understand, from the u.s. that we know about. it is imperative that we work to prevent the radicalization and recruitment of american citizens who could later return to the u.s. and cause us harm. and i know the fbi has an important role to play in that regard. we would like to hear about it. so mr. director, thank you for your work, and your career and we thank you for your dedication to your country and your service to your country. and all that you command. thank you, mr. chairman. >> thank you. >> thank you, mr. chairman. director comey, really appreciate do indeed as the chairman said, appreciate your service to the country. thank you for being here today. and we will, of course, submit your written testimony in its entirety as part of the record. without objection. and welcome your testimony today, sir. and to the extent you can summarize it, we would be

grateful and, again, look forward to hearing from you sir. thank you. >> thank you, mr. chairman, mr. fattah, chairman rogers, members of the committee, i'll be very brief. i want to start by thanking you for your support of the fbi over many years. the fbi's budget request for 2016 is about maintaining the capabilities you have given us. which is mostly people. the magic of the fbi is its folks. 70% of our budget goes to agents and analysts and scientists and surveillance specialists. and my goal for 16 is to be a good steward of the taxpayers' money because i know the kind of times we face and sustain that capability. we asked for two small enhancements, one that relates to cyber. and the other that relates it our effort to integrate better our systems with the rest of the intelligence committee, each of those is about a $10 million

request. but we are about sustaining what you have already given us and you have supported the fbi in ways that we are extremely grateful for. the threats that we face and are responsible for protecting this great country from are well known to this committee and you alluded to them in your remarks. counterterrorism is our top priority. the counterterrorism threat has changed dramatically since i was deputy attorney general in the bush administration. they actually changed in the 18 months i've been on this job. the shift has been the growth of the group that calls itself the islamic state from a safe haven in syria and portions of iraq, they're issuing a siren song to troubled souls to travel to the so-called caliphate to fight in an apocalyptic bottle as they styled it, or if you can't travel, kill someone where you are. and that siren song increasingly goes out in english, goes out on social media, and reaches into our country where it is consumed by people who are very hard for us to see because they're in their basement, they're in some space that we don't have visibility into, consuming poison and deciding whether they want to travel or harm somebody here at home, increasingly the focus of this threat is on

people in uniform, this week we saw isil calling for harm to be brought to over 100 members of our military services, and so the threat we face is global, it moves at the speed of light, and it is increasingly difficult for us to see because it goes to the complex spider web of social media. we spend all day every day working on this. to answer mr. fattah's question, we focus a lot on trying to find the needles in our 50-state haystack who may be radicalizing and responding to the poison and planning to travel or planning to do harm here at home. we have investigations focusing on these people we call home grown violent extremists in all 50 states, until about a month ago, it was 49 states, no alaska, that changed, we got all 50. that's no cause for celebration. we're working with our partners, in state and local law enforcement, and in the rest of the intelligence community to find these people and disrupt them. counterintelligence has been mentioned. a lot of folks tend to think the

spy game is a thing of the '50s, '60s or '70s. it is alive and well. that threat comes at us through human beings, internet, nation state actors trying to steal what matters to this country and we're about trying to prevent that. you mentioned the criminal responsibilities. we are responsible for protecting children in this country, protecting people from fraudsters, protecting people from the ravages of drug abuse and drug dealing and violent crime and i have folks all over this country, in 56 field offices, and in nearly 400 total offices, doing that work every single day. a word about cyber. every single one of threats i mentioned increasingly comes at us through the internet. you mentioned the modern fbi in a way it was born with the great vector change of the 20th century, the automobile and asphalt made it necessary to respond to a breathtakingly fast criminal element. 50 miles an hour, 60 miles an hour. we now face a vector change that dwarves that because dillinger couldn't do 1,000 robberies in the same day in all 50 states

from halfway around the world that is the threat we face through the internet. it moves at the speed of light, everybody is next door neighbors to everybody else on the internet. so we are working very hard to make sure that my criminal investigators, my counterintelligence investigators, my counterterrorism operators and all of our international operations are growing our ability to be good in cyberspace. because to protect kids, to fight fraud, to fight everything we're responsible, we have to operate there. so that's about people, training, technology and smart deployment. i'll mention one thing that most folks don't know much about. i had a chance to visit our facility down in alabama. most people don't realize the fbi trains all the nation's bomb techs and we do that down at the red stone arsenal in alabama. and we also spend time there building the world's greatest library of improvised explosive devices. another thing the american

people don't realize their hard earned tax dollars have bought and it is worth their money. we have the ability when a device is detonated or found anywhere in the world to compare the forensics of that, the tool marks, the hairs, the fingerprints, to thousands of other samples we have collected in the operation called t-deck, centered in alabama. work that is hidden from the taxpayers, not intentionally, just doesn't get a lot of headlines, but makes a big difference. i'll close, chairman rogers, you mentioned state and local partners. they're essential to everything we do. i've been to all 56 field offices and met with sheriffs and chiefs in all 56 to build those relationships. and i -- i do something else, which i think every member of a family like the law enforcement family should do. when officers killed in the line of duty, i call that sheriff or that chief to express our condolences and offer help. i make way too many calls. i've had three officers killed in this country, two yesterday, and another one earlier this week. totally different circumstances, navajo indian reservation in

fan due lack, wisconsin, and san jose, california, except united by the fact that they were all murdered by thugs. and they're people who certainly didn't deserve that and leave behind families. i mention this because it leaves me today with a heavy heart and we're having important conversations in this country, especially about race and policing, which i am a huge fan of having, but i'm keen to make sure when we have conversations about law enforcement, we understand what is at stake, and the sacrifices made by the men and women in law enforcement, and the kind of people who sign up to do this sort of work and especially today with the loss of so much life, just in the last 24 hours, it is on my mind. i thought i would mention it. i'll close with thanking you for your support. the 9/11 review commission, we told the world today, we released 129 pages about -- of their report. we declassified as much as we possibly could and their message is you've done great, it's not good enough and that is exactly my message to the fbi. i said that's what it means to

be world class to know you're good, and never, never be satisfied with it. we made a lot of progress in transforming our intelligence capabilities, we still need to go further. and the american people deserve us to be even better than we are today. and my pledge is i've got 8 1/2 years to go, i'll work every day to make us better. so thank you for your time. >> thank you, director comey. i think it is especially appropriate you mentioned -- remind us all to keep your officers in our prayers and our hearts go out to the family of -- families of those three agents who lost their lives. and that is something that all of us, i know, keep in the forefront of our mind, the sacrifice, the risk all of you take in protecting us and the country from these incredibly complex and very threats. it is also apparent in this new era, the scale of the problem is so huge that you really do have to rely on state and local authorities. it is a team effort and the genius of america is that it -- that the founders envisioned a

system where protecting lives and property, police powers is vested originally in the state and in the good hearts and common sense of individual americans. so there is also a vital role, i think, for individual americans to play in helping to defend the country. it is really the most important role quite frankly since one thing our enemies will never be able to defeat is that -- is the good hearts, got common sense of individual americans, defending their families, homes, neighborhoods, communities, the work that our local police and sheriffs and state police officers do is just indispensable in that partnership with you is vital and i appreciate you mentioning it to us today. and the evolving threat that we face was important motivation, of course, behind chairman wolf's amendment to create the 9/11 commission, which released its unclassified -- released its unclassified report today.

and i mentioned, the authors of the report, i appreciate you mentioning them in your opening testimony, one of the -- one of the key recommendations they made that i know you've already begun to do and wanted to ask you to elaborate on a little more is the vitally important role that intelligence analysts play in the new world, the fbi now confronts. and could you talk a little bit more about work that you're doing to implement the recommendation of the 9/11 commission to professionalize the intelligence analyst position within the fbi. >> yeah, thank you, mr. chairman. the fbi didn't have an intelligence career service as recently as 13 years ago. and so we have made great progress, but transforming an

organization creating an entirely new element to the organization i believe is a generational project. and so bob mueller spent a decade on it. i announced as soon as i started i would spend my decade pushing on that same change, because it is about attracting great talent, training them and equipping them right, but also about having the rest of the organization accept them and learn to work well together with them. and we are doing that extremely well in some places. other places not so much. and so what i'm doing is a bunch of different things, but i'm training our leaders. i want effective integration between operations and intelligence looks like. i am making it a personal priority so that i monthly review a series of projects to drive that forward. i grade our leaders on it. and i'm working very hard to make sure that people understand that this is something the fbi has always done. we have always been in the intelligence business. this is about making us better. it isn't a -- it shouldn't be a threat to anyone. it is about making this great organization better. so it is one of my three personal priorities at the fbi to make sure that i drive that integration between intelligence

analysts and our operators, particularly our special agents, and make it good everywhere in the united states. >> and in particular in making the analyst positions moving them into senior management level. making sure they're integrated with the -- as far as possible into your career service and in senior management positions. >> yes, sir. one of the things i do, with the support of this committee, when i started, is create a separate intelligence branch so the leader of the intelligence branch was much closer to me so i could see that person and drive it. i pointed a very talented special agent to that role, but i said i love him as a person, don't like him as a concept. because where the fbi should be that role should be someone who came up through the intelligence career service and i have talent coming up towards that, but i won't know that we have made material progress until the intelligence branch is led by an intelligence career service professional. >> talk to us also, if you could, sir, about the panel's recommendation that the fbi

adopt a five-year plan like the defense department, a strategic plan in your work to implement that recommendation and do you agree with its -- with the concept? >> that's one i told the commissioners i need to give more thought to. i don't want to create plans just for the sake of creating five-year plans. i've been in a lot of institutions where people spend all the time writing them and they sit on a shelf. we've got all kinds of plans in the bureau. what i promise to do is go back and figure out whether there is a missing overarching strategic plan that ought to be written covering a five year period. i don't know yet whether that makes sense for me. >> the commission also wanted to be sure that we recognize and point out to the public that your information sharing with state and local police departments and law enforcement authorities is a good news story. talk to us a little bit more about that. >> that is a very good news story. we have i think broken down a lot of the barriers, both tech knowledge exactly and regulatory

policy between us and state and local law enforcement. we share information but most importantly the culture has changed. we now lean forward and push things out as a matter of reflex. which is so great to the united states, all 50 states. i say, how are we doing to the sheriffs and the chiefs, and the answer s you're doing extremely well. we have seen a dramatic change. and it is the right thing to do, but also very practical reason, we need these folks. our joint terrorism task forces are made up of state and local law enforcement that contribute their talent to us. so i do think that's a good news story. but as i've said to folks look, i have a great marriage but i believe i can always find a way to be a better spouse. we have a great relationship with state and local law enforcement, i want to continue to try and improve that if we can. >> i'm confident that the first time we'll spot someone who has come here to do us harm from overseas, a terrorist is going to be an average american, using their good judgment and their instincts to spot something peculiar and/or local police

officer or local sheriff having spotted something that just their instincts as a good law enforcement officer tells them is out of place and wrong. it is a good story. and frankly, the entire 9/11 commission recommendations, it's very encouraging to see that the sum of what they have sent the congress in the -- in the unclassified version and the classified version is a good news story for the fbi, that you've done a good job in responding to 9/11 and we appreciate that very much, sir. we recognize mr. fattah. >> thank you. when i became ranking on this subcommittee, one of my first visits was out to the center for missing and exploited children, which is one of the places where you do joint operations, looking for children. and the innocence lost project as the committee supported, you now have been able to rescue

some 450 children. but as you know, there are thousands and thousands of children who are missing. many of whom are being exploited in all kinds of terrible circumstances. so as you, as the director, you have to prioritize you know, where you're going to place you said, your greatest resources, your people, your agents. you got -- i've been out to the joint terrorism screening center, very important work going on there. you have to make these decisions about whether somebody is tracking down a child who has been exploited, whether somebody is looking out -- chasing down a terrorist. can you share with us as you're working through these issues how you have prioritized this under your leadership. >> yeah, thank you, mr. fattah. the work involving kids, by the way, is some of the most important, meaningful that we do. as the father of five, i've gone

out and visited all my folks who do this work and told them there is nothing with deeper moral content than that work and i want you to take care of yourselves, because i worry it eats my people up. but the way we approach it generally is and this is kind of a homely metaphor and i'm not a football player but i'm a football fan. we have certain assigned coverages. counterintelligence, that's our responsibility. but beyond that, what i want to do is look to the primary line of defense and say, where do you need us in this games? do you need us in the flats? over the middle? should we play run support? should we play deep? that's going to be different in every game, against every opponent. so the way the metaphor works is i've told my special agents in charge is in the cities in which you operate, figure out where we can make a tackle, all right? i don't want to jump on piles where people have already been tackled, i don't want to be speared in the back but figure

out where we're needed. because we're a big agency but we're small compared to state and local law enforcement. so figure out where they need us to make a tackle. and that is institutionalized in a process we call threat review and prioritization. it is a very disciplined and very, very complicated process where we figure out what threats in the united states we're needed to make a tackle on. in philadelphia where are we needed? in birmingham where are we needed? in phoenix, where are we needed? and we come up with a list. >> the taxpayer may not know about the explosive bomb detection training you do in alabama. i don't think most americans have any idea the thousands of children go missing every week in our country. and some of them end up in circumstances in which they're exploited for years, on the internet and in other ways. and so, you know, if you got -- you mentioned the officer was shot, this week, and killed in wisconsin by suspect in a bank robbery, one of the things you do is chase bank robbers, right?

so somebody whugs who's a special agent in charge, you know we'll go after bank robbers or we'll go after this little girl being exploited and making very tough decisions with limited resources. and i'm just trying to understand because we have to make decisions about what we're funding. how are you making the decisions? none of them are -- none of them -- i guess you want to do it all, but you got to decide. >> the way in which we make a decision is sit down and talk to people like nicmic, social service agencies, talk to law enforcements and say, okay, i'm the special agent in charge in philadelphia. who is doing what to address that problem here? given that, where would i rank it on my priorities so i can press my resources against it, according to where it fits on the priority level. we do the same thing at the national level. in washington, we sit there and say, what are the bad things that could happen in the united states that the fbi might be able to help with? there are 304 not to be depressing. but there are 304 bad things.

we say, okay given who else is helping with those bad things and the harm that flows from those bad things, how would we rank them? we do that and come up with a national threat ranking of all the threats we could face. it is imperfect but the way we try to balance it. we do the work you're talking about in every field office. >> the chairman of the full commission mentioned enter poll. ryan noble, a friend of mine runs enter poll. he's been doing a terrific job. and the europeans have something magical going on because they can make arrests and prosecutions throughout these 28 countries. with no extraditions none of these other issues. they kind of have a seamless system that we can't do state to state. in america. it is interesting they have jumped over language and sovereignty issues and nationalities to work law enforcement in a much more seamless way. so it is something we can learn, i think, as we go forward. thank you very much. thank you, chairman.

>> mr. fattah. chairman rogers. >> biggest change that i've seen in my experience as far as the fbi is concerned over the years has been the graduation from investigating already committed crimes and preparing evidence for prosecution and then there is today's world, where you're working more in preventing, trying to prevent events, including crime, before it takes place. counterterrorism, trying to prevent terrorism, trying to keep spies away. the constant barrage of cyberthreats, foreign and domestic, prevention rather than prosecution, though it may

eventually be prosecution. that's a significant change. and it has taken an effort on the part of the fbi leadership over these last few years to try to get it through the agency's head that -- about this new world in which we live. and the mission of the fbi, more in prevention, actually, than prosecution. do you agree with that? >> very much. the transformation that is happening in the fbi is one from a place where we were criticized, with some justification for working our inbox. something that came in or call that came in, we responded to it and investigated it, to stepping back and having lots of thoughtful people say, what are the bad things going on here that might happen, and how do we find out more about them so we can address it before it happens? and that's the intelligence transformation. we have always been -- director

of the fbi, but i say this with pride. i think we're the best in the world at finding stuff out. what we're getting much better at is being thoughtful about, so what stuff do we need to find out? and who else needs to know this stuff that we found out. and what might we not know? what stuff are we missing and being much more thoughtful about that. that's the -- taking the intelligence talent and connecting it to great talent resident in my special agents. >> well, and the current world war, frankly, the world -- the terrorism violence is a worldwide event. so we're in a world war. and we're up against a very sophisticated, capable enemy. the recruiting of foreign fighters, into syria and iraq,

we have not found a way yet in my opinion to effectively stop or even slow it down. and it is more than a law enforcement, it is more than an fbi mission, but it certainly is an -- and an fbi mission. but just last week, we learned about a 47-year-old air force veteran, who tried to join isis, and before his apprehension, tarod pugh worked for a number of american firms overseas including a u.s. defense firm in iraq for whom pugh performed of avionics on u.s. aircraft. we had several stories like that that appeared. is there a magic bullet to try to get at that kind of problem