morning your honor may please the court and miss morton alexander cashin the only other party in this case before the district court did not file a brief did not contest the decision for is i reckon i would recognize his counsel i would recognize mr cash and we don't know the court doesn't know in fact whether mr cashman still alive whether he still has counsel whether that's there still pursuing this case whether he still enjoys the support of political forces in russia that basically drove this case from the beginning within that relevant it is relevant because we know what mr mr cashin wife's from this court because number one of his absence i would consider that a procedural befall he has acknowledged to this court by not appearing in defending the case below that his he's happy to see this court reversed this case number two we thousand and two in moscow expecting congressman curt weldon to join him and he said that there is no private insurance in this case therefore the only remedy for mr cashman is for verity be a private bill from congress giving him relief in this case that is what mr cashman in this counsel have been pursuing from the beginning of this case and that only will happen if the united states acknowledges or the court case arising in a foreign country so miss martin will lead this case with a win regardless of what this court does because the united states if this court reverses  or foreign country and there used to be what's called a headquarters claim where people would attempt to use the f t c a but the supreme court actually following some precedent of this court concluded recently that the foreign country exclusion is clear and would apply in this case because the united states has not waived sovereign immunity and mr can enjoys the same immunity that the united states house and the analysis in this case that i think the court should apply as is the following this is not a case of controversy that's what this court's job is to do is to decide cases not to engage an intellectual exercises or to tell and there is no one who will be harmed i'm afraid i confess i'm embarrassed i may have missed something did you file a motion along these lines your honor we did not know we filed our brief who is going to appear in this court whether it be the united states or whether it be mr cashman now the united states be low appeared and fall in opposition to the petition for sort of occasion the federal proclaims like only requires that the united states attorney be noticed as to the petition of certification what the united states then does after that is up to the united states made no motion to intervene they explicitly went to great pains to say in answering that the titian that we are or in our reply that's the first thing that we discussed and we cited three two cases from this court and a supreme court case which indicated that the three elements of the case for controversy do not exist in this case the united states cannot stand in the court felt needed to be protected and the united states was in a petition in a position to adequately protected in this case what was that what do they need to commit to you your honor i have to confess i i can't address the details of that case in looking at this we cited three cases and all i can rely upon with respect to your honor are the three elements of the test of the case or controversy and and i apologize for not being able to respond in connection with the supreme court case to be cited but what i can say here is that the analysis is to ask miss martin why is the united states here does the united states brief the government has said only to the court quite explicitly in footnote one we have peter here only to defend the decision of the district court this is not an and they must actually i know trial judges would love to counsel argue their position before this court but the united states can't do that and so i think the proper resolution of this case is for this court to say that there is no case or controversy as far as we know mr cashin from the record before us wants mr kant to be certified so that he can get attempt to get a private bill in congress using the influence that he claims to have with the russian duma the record indicates that his house will claims that the prime minister of russia has raised this issue we call him power will raise this issue with the president and that he expects once the state department and once the government acknowledges  qantas acting within the scope of employment of the attorneys will then go to congress and get what congress often does such as what congress did in the kenyan bombing case and i'm just so your client however u s attorney in that district are obligated to determine whether the employee was acting within the scope of his employment under the u s attorney's manual and the code of federal regulations and if they were obligated to contact the state department for the stated purpose to make a recommendation to the part of justice in a decision to be made on the spot what happened in this case and this is in the record is that mr but she no i believe her name that is who was defending the case in philadelphia had a telephone conversation with kevin gleason who court matters for the department of state and based only on his knowledge of the case being in the media and not consulting with mr kant or his counsel simply said oh he's not within the scope of his employment and the government answered the suit and in his answer stated that mr kant was not acting within the scope of his employment and attached what i believe was a letter from mr gleason's about effect none of those procedures were followed and when i have taken over half where your honor in pelletier versus the federal home loan back board in my view sent out a matrix that can be used in this case and in that case you're on a rule before the monitor your honor and other members of the panel that it plaintiffs who wants to challenge a certification may do so even the statute even though the statute doesn't stay still and you ruled that in the supreme court later ruled that as well and the reason for that your honor gave is that the immunity provisions of the federal tort claims act should be broadly construed and they should be broadly construed in the case of mr kant in order to afford him the protection of his employment that he has promised when he goes overseas and then the second thing that your honor indicated in that case that i think of this is of signal significance is that in looking to california law your honor through the same conclusion the court to the same conclusion and that is that the california law respond yes appear your should be broadly construed and the standard that was adopted from the california highest court is that it should be broadly any conduct broadly incidental to the enterprise of the employer is within the scope of employment or if there is a substantial deviation from that his employment the case that i would ask the court to look to his hinman versus westinghouse californication nine hundred seventy in which the employee was paid for the time or paid to drive back and forth from work to home while  still going on and applying the enterprise theory to that case the california court of appeals said that there is an incident in sedona a benefit to the employer and we shouldn't fur that there is an agreement between the employer in the employee that the conduct of this employee going back and forth is within the scope of his employment unless he departs substantially from that now when mr can't and when anyone else joins the foreign service the agreement that they enter into with the department of state is set forth in the foreign affairs manual it's set forth in their training it's set forth in the regulations having to do with their medical status it's set forth in the regulations saying that their conduct is covered twenty four seventh's and in the statute in the regulation that says they're on duty twenty four seven the state department comments that the position of a foreign service officer is unique it is unique it is not like anyone who is commuting from pasadena into l a is there anything that's not covered absolutely the the the scope of the employment is defined by in our view the diplomatic community that the government certifies mr kant enjoys when he goes overseas and it's defined by the fam regulations and it's defied by the regulations having to do with what is a business use for a post now mr can't there's not there is no floodgates problem here because mr kant is the only person in a lot of asta who can hypothesize that and act of a foreign service officer which does not fall within his diplomatic immunity would be outside the scope of his employment and such an act for example would be an act which arises out of a foreign service officer running a coconut plantation on the side in the country where he is accredited to and there is some criminal activity there arises out of the operation back and forth between work which is what arguably i think rightly within the scope in this context he with out to the gym if mr can and mr kent has pretty obviously been stationed in washington d c if you were stationed in washington d c if you were driving his own vehicle to the gym and was in an accident that would not be within the scope of his employment because that is not a defined business use under the regulations of the department of state when mr can't goes awestruck before he goes just employer says to him all travel whether you are in an official vehicle or in your own vehicle or anybody else's vehicle all travel to the gym or home or otherwise is a business used and the reason that the state department does that is because it recognizes the risks associated with driving vehicles in foreign countries and it does not want its principal mission ambassadors driving vehicles in kenya and in russia where there are no lights and where the police system is corrupt and any other country where the risks of the road are great and when you have an automobile accident people come out of the forest and  councils generals consider business use that's correct and then two twenty eight point one zero zero provides that he may use a private vehicle for any transportation and judge wordle i think it's to me i think that your healthy skepticism about this case which i think is born of thinking about people working in california and washington d c that really well i think it gets tru case the question about going to the gym greg so ok so you're ready to answer part question about about going to the gym now he could go to the gym in an official vehicle he could be an official vehicle every time he goes anywhere and lot of last i can i can tell your honor the sickness case is notorious and now consuls everywhere right in the in the official vehicles they don't drive anymore because of this case  r i also thought that question too and i think the restatement can be viewed as being narrower than the california law if it can be permitted to be used in the way that canst motivation and using his own motor vehicle was to do with the budget and fiscal officer told him to do save money and mr can't is part of this agreement that he entered into with the foreign service knows that he's up or out if he doesn't do well in his engagements as a foreign service officer and one of the things that is in the record is that he must demonstrate that he can make good use of scarce resources and while it wasn't an the department of state actually and the department of justice actually in many cases might choose to do that act to the point where they're determining whether they're going to scope an individual the most convenient way to deal with the issue and i have been negotiated with lawyers for various different federal agencies about that and the answer to your honor's question is they can do that because so far their decision in that regard is unreviewable if you take a look at the target of case which i handle but this court can't say that we should use the law of the district columbia because under ery vs tompkins mr kant has a right to have his state law applied and because this court in the meredith case in the case involving whether antarctica was a foreign country has said in both of those cases that we're not three to invent a law to apply to for example torts which are current in arctica which this court has concluded and judge believed as well it does not constitute a foreign country so we're not going to make up a wall for antarctica and we're not going to make up a law as indicated by the ninth circuit in wilson versus drake and smith versus us we're not going to make up a law just to make sure that somebody has a remedy in the wilson versus drake case in one thousand nine hundred six case out of this circuit the district court i think it's easy to suggest going wild because the district court concluded that application of federal tort claims act immunity to the physician there that are committing malpractise on a on a child was unfair to the plaintiff and although  he found that the certification was proper he felt the california law could be hypothetically expanded to allow this case to go forward and this court actually had to enter an order in joining the district court judge from going forward with the trial of that case because the defendant physician in that case was intitled to a broad construction of the federal tort claims act in terms of whether he enjoyed immunity and then this court found that he did indeed enjoy immunity and the court said that we're looking at the issue from the wrong end of the two the issue is not finding a remedy for someone who's injured by the conduct of a federal not going to create a federal common law we're not going to try to or i didn't think i understand what the what the court said is look the federal tort claims act was created with the understanding that the united states would be liable in the same fashion which an individual under like circumstances would be liable and the supreme court said congress set up a vehicle to allow for the application of of state law and it's not appropriate for a federal court to say in richard's i believe it had to do with which state's law is going to be used it's not appropriate for the court to say ok we're going to pick this state we're going to pick th state or we're going to take this state in the richards case the court said we have to look to the choice of law of the form state not to our own ideas as to whose law should be applied because we know that the choice of law that individual states select to use can vary and the supreme court even had knowledge that some states in their choice of all rules of value await the interests of the it's it's it's much broader and intentional torts are very broadly construed i think that this court the california courts been struggling with intentional torts in the sexual assault context and it looks to me as if california has backed away from them lose the marianne case and basically is finding that intentional sexual assaults are outside the scope in california but the premier case in the district of columbia involves a  so when we take a look from the discipline of our legal education as to what law we choose i cannot conceive of a defensible intellectual approach to a case here in california where mr kent is entitled to the benefit of his law to allow the court in california to use just the columbia law and the order not through any current character made in the district of columbia surprising to me that you were arguing in the nature of a motion to dismiss this case is moot procedurally to fault the case or controversy if you ever filed a specific motion to that extent i did not and i would not quite frankly i m think the district got it right on our own motion we sometimes have to look at whether it is the one or not well i mean when i looked at that question i thought it was what i thought of was usually think in terms of the  i think the first principle you need to start with in this case is the coming and going role which is recognized in every jurisdiction including california under the restatement which provides that when an employee is coming or going to work in a personal vehicle they're not engaged they're not six if you look at six to twenty eight point two dash one which is on page fifty seven of seventy six and then if you turn the page which i understand it was it least in part to benefit the employer then you can use an official vehicle any time for any purpose because those those troops are always for official  sort of the russian authorities you know any sort of criminal and it immediately didn't mean it didn't have to take a blood test and and so for the purpose of your relationship the government's relationship with  difference what the difference is that the question is a different one the question for that scope certification the question we've been directed to look at is whether at the time of the accident the employee in question was working the clamor case out of this court i think makes that very clear there you had a government employee a military they were going to military base they were nonmilitary employee had been on temporary duty in hawaii had to stay off the base because there was nowhere else from to say that room paid for by the government with a rental car paid for by the government is driving off the base to go directly to the motel where he was staying after working all day and the court said he was in a car accident court said that's not with  working until it had the pillow twenty four seventh's on an investigation was not within the scope when he was driving home from a bar because that night even though he had been working around the clock he had stopped work for the evenings they looked at what he was doing at that particular time and they said not wit contact his employment agency which in this case be the state department which then makes a recommendation to department of justice for the department of justice has the final word on whether or not the state department's recommendation well we actually that information is a rental car from boston northward to pick up the billable items and the accident occurred when he finished his work for the day driving back to his hotel room coming and going in but just for that ride but i think that was different i know because the only reason he was driving can give more protection to your people you hire maybe to be happy with that result even if it's not the one you're urging the government might like that kind of result who would tell them that think consular officials if you really do stand behind them you have an extra ten minutes we'll give you thirty seconds there are there are two things that i believe are really going on here number one the department of state would like this court to do its work for it by reversing the matter and they can throw their hands up and not have to face the music in russia where they say you're protecting this neo nazi that's good for you very well might help you do you have any objection to that they don't have any the answer of the questions you've asked we met with the undersecretary of state in charge of this stuff and they won't tell us and so one needs to infer that this maybe this has to do with over time and pension thank you very much