and be met here and then let me start with the first prong of kohen which requires a fully consummated decision and a complete formal and final rejection of the defen prong it basically argument of for jurisdiction in this case is that we have a substantial claim to immunity meaning that we do not have to stand trial our client under the doctrines that we have put forward before this how we we believe that the combat negativities exception the federal tort claims act grants us immunity from standing trial where you're not a government you're you're not being sued under the federal tort claims act you're a private contractor you're applied the contractor the combatant activities exception of the federal tort claims act to private contractors like celeb and like taylor have held that we have as a private contractor when we are acting in a in a wartime situation in a case that arises out of the combat activities of the military and we have immunity isn't this really a preemption question it is a preemption question ok in a district court the district court that we had immunity ok as well all right but you argue that the that exemption jay under the federal tort claims act prevails here and in effect you are arguing that that federal law preempts the ability for the plaintiff to bring suit under state tort law correct correct ok so shouldn't we be looking to determine whether or not this case is properly before us at this time are the preemption doct march twenty third two thousand and ten your order that that case we we're arguing in this case we believe is supported by this court's decision and coralie that that the conduct better activities exception does grant immunity to our client and the immunity that's created to our client is the immunity from standing trial going through the discovery process and being forced to defend this case in the district court the i'm aware of don't case which which  that first why you don't want to conflate the concept of preemption and immunity they're two different concepts you would agree with that would you not i would agree there they're different but they're related you're weather related but they are to the elements of each are different are they not this these types of arguments give us some unity from suit so that we do not have to be forced to defend ourselves on issues that relate to military decisions in a wartime context well it's true that if the evidence before the district court were such that you could show without question on a summary judgment application that preemption here gives you the right not to go forward with the case then you have a and you know every right in the no case which says that merely because as a contractor you may have the right of preemption that you automatically have immunity as well and that you can sue to prevent being sued similar if not identical at least in taylor type case or similar of not identical to our case here in those cases i believe so give us the concept that we are immune from suit such that we don't have to go through the discovery process like the federal government our argument on the combat negativities exception is that it is a basically an indirect challenge to the federal government sovereign immunity that has been extended to us and it's very clear that when you have the federal government saw sovereign immunity governmental unit it i don't know how you read of that what i said your honor is that i believe that those cases stand for the proposition that when we fall within the parameters of the combat negativities exception it is like it is an indirect challenge to the federal government sovereign immunity cases have extended that sovereign immunity to clients like ours who are private contractors in cases where the combat negativities exception applies because they recognize that there's an indirect challenge to the federal government sovereign immunity because the decisions of the military are being questioned well they stand here under the concept of preemption that that if you could prove combat activities or political question and there's enough evidence there that you are preempt from reality from being sued but they've never said that such a preemption is tantamount to immunity that you have the right to appeal simply because the political question doctrine the political question is it is a lot closer question i know is that the days closer you think it's harder to get i think it's harder to good guy agree i don't i don't dispute that point but but on the under the salafis case under the taylor case the case is the case the beslan case we believe that those cases stand for the proposition that when you're attacking or or suing a private contractor in the context of a combat an activity is exception argument where you're you're the claims arise out of the combat activities the military that's an indirect challenge to the federal government sovereign immunity that we then get the benefit of under cases where for example boyle and the curly case where they have extended those arguments to probably call you that is in your case actually a lot closer to the southern district of texas case in lesson versus your client in a northern that district court cases such like the and i believe our case is a lot closer to the case of taylor and the slave case where we're arguing that the combat that tim is exception applies to us and grants us an extension military operational control over your people in the maintenance of the buildings in iraq i don't believe that's the case you're out of the in the sleigh case the there was findings that for the interpreters that they there was some control left with the contractor that it wasn't complete control by the military and the salafis decision in the d c circuit in our view of that case said that that control doesn't have to be complete control and in our case we believe that the control is very similar if not identical to what was found in sleigh and also in taylor our client was subjected subjected to basically we were we were told when we could go out to the buildings we were told that we were limited to doing certain things isn't isn't that a factual matter that so in a strip of lee and tied into the merits that the second prong of the cohen doctrine defeats your argument no i don't i don't think so you because the second prong basically says that the you have to be able to resolve an important issue separate from the merits of the appeal if in fact who has it sent because what we're arguing is that the c in this case does not have it's a jurisdictional threshold jurisdictional argument the court cannot go to the merits of the case because our arguments are that there is no jurisdiction to do so under the combat activities exception and under the  the political question dr well even if were accepted argument you know you're saying a sure it's a combat zone i we all agree with that in that the military didn't want that total up maintenance here but no one told your or your contractor you can go out to the building you can replace what's their income if you haven't done ground the pump when you go out of the building all you do is replace what's there when we call you out you fix just the specific problem you don't do any upgrades you don't do any preventive means you don't do any inspection so we were under the control of the military we did not have the option of going out and putting in a grounded pump when we were faced with a failure of another of unground the pup we were told her place in lake county and replace exactly there before but their claim is that you put in inferior pump and claim they claim also that it should have been grounded such that it whenever this would have occurred i understand what their claim is as i said we have a lot of years after the fact we came on the scene after people already living in this building we were tasked just to replace what was there so when we were tasked if in fact we were tasked to replace a water pump and i don't think the rep is like ruth i don't think the records clear on that i think they made be a factual question here as to whether or not the pump that was there would have been wouldn't it given this type of electrical shock the owner i think you could check the record i don't think there's any evidence in the record that that pump that was there was ground the before we got there we says that it was without prejudice for them to raise some of their arguments on summary judgment the second prong of that argument is that it has to the order being killed has resulted import issue completely separate from the merits of the action  the combatant activities goes directly to the merits of the action in the sense that they said look the work that we did that were alleged to have performed negligently or been negligent because we didn't perform is is a combatant activity that kavanaugh was the court's decision on the combatants activities exemption was it couched in immunity or preemption doctor i believe was couched in immunity and raised combatant activities we do not think that they are exempt from combatant activities for the purpose for two reasons number one on the combatant activities the record is the void of any evidence that  combat activities these guys get shot you know m r o or today mortar attacks insurgency i don't know about my colleagues but that seems to be a frivolous are you detect this is not a combat zone can i address that side busway they stated that there was it was designed to recognize that during war time encounters no duty of reasonable care is owed to those again soon force is directed so they couched it in terms of the duty of care in interrogated abused allegedly prisoners at abu ghraib those prisoners eventual game became plaintiffs because force was directed towards that in this case no force was directed towards  sergeant ryan mason and so the design behind the combatant activities even though they're in a combat zone is not is not triggered here because it's not it is not the case in this instance where k b r needed to be free to do whatever it needed to do in applying force and so in the sense that when you say that they're in a combat zone i realize it's a time of war over on a base and things could happen but the specific intent of the combatant activities has a different application and that's even true in the cases that have been cited in this case if you are in agreement with the defendant that the least as to the jurisdictional question that this is immunity in my argument there would be recognizing that if you accept that immunity is one of the instances where the collateral order doctrine applies and that's what they use in this case i would argue then then you have to you have to see whether there t both parties go take a discovery on its defenses with respect to both political question and combatant activities discovery was had it was submitted to the court she going to do is limit to discovery was on just the defenses they raised it was not was not wide open discovery so discovery was raised or conducted on his limited issues with question him back in activities and that's how we know number one with respect to judge not negligent but they're going to bring in the government and other claims concerning the combative tidies as to why it was done the way it was which will bring in that there were contributing causes to this accident not even if they are negligent they'll say there are contributing and superseding causes and therefore it's going to bring in questions of combative these about political question so that it's all intertwined claims that they would make as to others negligence which contributed to this ok first of all i wasn't sure what i heard you correctly just so we're clear out we did not couch this our claim as a products liability claim it is not a products liability claim which is significant significant because there are other cases that a sort of the government contractor defense would have other i issues their number one the court below judge moore barry fisher did fantastic job in analyzing the plaintiff's claims she did point she did analyze the plaintiff's claims but through the lens in only the lens of what the defense is could political question i believe she had all but the fifth prong of the baker versus carr requirements which is you know i just want to state that i don't believe anyone the pellets and am pleased don't disagree that those are the factors that apply here but she analyzed that entirely within the context of their defense of what their defenses would be and she also did same with combat activities but i want to address this because claimed the fence raised the political question at some point you can you can go so far down the line that you can vote the political question at some point out here and i think it is the court's job in the first instance to say ok let's see if those would be applicable at all in this case and i think there has been a line drawn carmichael's carmichael's to the subway i can't think of the other one but they draw the line say look there's too much there is too much government control for example in a convoy case or when you're interrogating prisoners and in the mcmahon case the same eleventh circuit that this is that decided carmichael said in that case it was just incidental even though they were in a plane transporting marines over afghanistan at a time of war it was incidental so there has to be along the continuum there's a decision that has to be made and i would like to to this end by the way  although it was filed after we found our briefs the the solicitor general of the united states has taken a position in the carmichael cert petition headed towards the supreme court and they have actually stated number one that they believe carmichael's was wrongly decided and number two and this is a quote out of their brief and i thought it was significant enough to to read it says the u s has quote significant interest in ensuring that it contractors exercise proper care in minimizing risks to service members and civilians and do not avoid a perfect sanctions for misconduct they want on to say that they can think of a a way to construct a trial even in the carmichaels convoyed case where the jury is required to consider whether the contractor acted reasonably even given the circumstances which were then existing which were a lot more hostile and were off of a military base compared here and i also thought of a hypothetical that might illustrate it and it's this if k b r and they are contracted or were contracted to serve mess hall meals at the mass hall you know if they left the tuna understand this extreme argument take me to the stream they can raise the political question i'm sorry the combat activities because the said well look we're in a combat zone it wasn't our decision to serve to serve tuna that day it was the military s military told us what to order it was our decision to put the mess hall on tent where there was no refrigeration and the like and you can then you get back into that continuum argument and i'm not you know i use that as  just illustrated for example but the question is i think it's the core jobs in the court have in fact said we're going to consider the plaintiffs claims in the political questions and we're going to decide where that dividing line is we just think here in this case that the dividing line it falls on the side of the fact that there weren't political questions and weren't combat activities there was one other thing i wanted to address the record just some of the later the complaint has said that  negligent because they failed to diagnose the electrical current failed to ground the water pump failed to ground the building there was a lot of dispute on what k b r says what  allowed to do and not allowed do it is undisputed on this record that their own k b r chief of technical services said that if we can go into a building and we see that there is a problem we had up to twenty five hundred dollars without asking anyone else for authority to fix the problem because that was only limited to discover and we haven't gotten into full blown discovery we are going to do spiny of evidence that they could have fixed this problem for far far far far less than twenty five hundred dollars and probably five dollars the other thing is we've alleged that they failed to diagnose what the real problem is sure the pump might have been short circuiting butt the pipes were energized and an electrician should realize metal pipes in a building shouldn't become energize that tells you should go to the circuit breaker which everyone in this case admits was ungrounded and fixed the circuit breaker they went out there repeatedly what the pipes energized that's not even in speed and we've maintained not only did you not call the service or didn't come in go replace the water pump it said someone's get shocked at the sink go figure out what's banner of what's what's wrong and they made the determination we got to fix the water pump the army had absolutely no role in that at all they were given here's their job they were given a contract they accepted it they got paid plenty of money to do their job now the question is did you go out diagnose the problem douglas joy you're getting into a contract interpretation their position is not that they were there you fail to diagnose it gets really sixteen they get to rewire the whole building and fix the whole thing right from from square one that's a question of fact that that's a substantive defense they can say look we weren't authorized to rewire the whole building we would contractors as showing that even that that the the actions of these soldiers was bad that they should also come down on the contractors but they were just from a factual basis and baker carr says that for political questions you need to engage in discriminating review of the facts of the case and so leg involved combat activities engage in what we would concede combat someone's bathroom so we would distinguish should both on the opinion itself the facts of the case as well well why should we follow the reasoning of the court in it carmichael carmichael why why did you not should we the reasoning an carmichael in the eleventh circuit did they have it right it was they could they got a lot closer in that in mcmahon it was incidentally in carmichael yeah i think it's a lot closer call and certainly a way closer call than the current case because in  carmichael they left the base transferring fuel to an air force base across a known hostile area the convoy was warned of warn of hostile activities before in fact it got attacked by an i e d in that  in that convoy that the military said you must base your trucks one hundred yards of party must go between fifty and sixty miles per hour you have to obey the orders of the army while you are doing in that case i think it is the case that they found that they were under plenary control of the army and didn't have in this case the driver of though convoy truck that overturned he didn't have the choice but to take the yes curves at fifty to sixty miles per hour well here they they were told to replace the pump they replaced the pump now in fact they were not told the replace the pump they said someone's getting shocked in the shower here's a service order could you please go figure out what was wrong after that after they handed off the service order and army official didn't go with them for army official didn't approve their work they didn't inspect the work they didn't supervise the work they said we've got a problem here you're the electrical contractor on the space go figure out what it is tell me when you're done that is far different than the convoy where they're telling this is what you have to do and i can and can't emphasize enough that in fact they were not told a soldier did not hand in a service order quest saying hey the pump assured me they were just saying a soldier the same soldier who had run maces bathroom six or seven times was getting shocked in the very short shower that ryan mason seven months later was electrocuted and died put in a service order request and all he said was i'm getting shocked in the shower discovery and the other way we distinguish that case was the fact that it was treated by the court there as a garden variety preemption case which brings me to the next point and that is that in this court's decision in carlie they the defense originated cases immunizing private contractors from liability of public works projects the court concluded that the rationale of the defense is the extension of sovereign immunity and in circumstances where the government not be liable private actors pursued the government directives should not be liable either because on the next page that it's the same actual page it says notes that the actions is not limited to military particular meant that the issue of sovereign immunity extension of private contractors is valid after boy did was say the problem is you disagree with them and they disagree with you as to what the contract required you to do the judge the judge district judge found in this case if you look at what the district court's findings were that basically from the district judge found the we were required to replace in a light kind what was there and there are military decorations that are uncontradicted that said level b is purely reactive maintenance you go out replace what's there based upon the existing infrastructure that's it case closed and the story put the pump in if it's i'm grounded when you go there you replace them with it and grow the pump and you leave you don't you're not allowed to upgrade the building to the rest of the issues that mr cavanaugh raises all go to the merits our arguments proceed that we say you can't go to the merits in this case you can even assume there's negligence but under government you don't have immunity here now look why should we think that not your application with without prejudice why should you go back to the district court and prove your point namely that you're entitled to preemption because combat or what why is the record so clear that that you should not be required to prove something beyond what you already proved because cases like slate and taylor say that when your private contractor is acting in a case that arises out of the combat activities which the courts have defined as being necessary to and in direct connection with actual hostilities the record here is replete with facts that establish that the work we were doing out there is in connection with active with in connection with actual hostilities what could be that we described it as a as a combat area but your services had nothing to do with combat we were fixing a pump your honor on a base in the middle of the battlefield of the district court found was subject to persistent rocket mortar and small arms fire the reason that soldiers were housed in these hard hard stand buildings the did not have grounding and that fact was known to them was because we were in a combat zone where the risk of of of harm from the fire was greater than the risk of putting them in the buildings where they had electrical hazards that were documented and known to the military in that context where we're only asking one fix when you get a service or you want to fix what's there and that's it you leave we're going into a compound that involves training iraqi soldiers for combat our whole mission was basically integrated with the mission of the military keeping that base operating that's what the decorations the military decoration said that's what the judge found but why should you go back to the just record and prove taking your are get your argument here on our point is this is not of preemption case the carly will coach case that i think believe you were involved with follow this as a issue of government of immunity extension of the government's immunity or sovereign immunity to us yeah but no one here told you as did other cases how to do everything and they didn't dictate what to do nor did they do that in carmichael the issue the argument carmichael was askew could look at the sole negligence of the actor and the courts in the carmichael court said no the tailor court said no the slate case says no you can't just isolate the the every case can boil down to did somebody do one thing wrong you can't even state tort law doesn't allow you to me ask you this question as you are framing you're a human are you claiming that and obviously d n a before this court is whether or not you have immunity to the claim that's brought by the plaintiffs but it seems to me as you  you're basically asking for immunity for your client for anything that is done under the contract that supported this case your honor if we say we don't take that position i want to make sure it clarified that the courts the test for the combat section is it necessary to get a direct connection with actual hostilities our view of this case is that the facts of record very clearly established that what we were doing was keeping this base running so that all these military men could go out and fight their mission and we did what the military told us we replaced what they told us they said it was ungrown the building don't know don't ground it just just replace what's there the example mr cavanaugh gave i think the courts can easily look at that and say that's not necessarily to necessary to it in direct connection with actual us to leave it to to fish out in the sun is it necessary to and directly action with actual us delays in this case what we were doing in that building was doing exactly what the military told us complained about getting shocked that you were the guy you were directed by the military go to correct this problem in tell you what to do they told you go correct this problem you could have done it for five dollars or twenty five hundred dollars whatever the range was but you didn't need to go back and get a work order to do it you know you agree with that the facts of records show that every day and there are witnesses they offer to testify the one that the problem was fixed every time the you won't find any facts that indicate that pump that was involved in this accident was a subject of any of those work orders that he is referring to the relate to shocks so we said we have a number of disagreements other person said you're making a point perhaps a judge callan and i are getting with you that there are facts in dispute as it relates to the specific issues that are getting here causally alive still is archie here too early for us to decide your immunity defense so that was an exploit i was going to make no we're not because there are any nuff facts on the record to show that what the activities of we were performing were necessary to in a direct connection with actual hostilities the not the district court made a number of findings on that fact the district court also allowed at least implicitly if not x that further factual development could change her disposition motion to ensure she did say that here or yes she said it i think twice she did say that  that one of the differences here though is that when you're looking at these issues in the back neck timothy's and the political question doctrine the questions all revolve around do we have to question sensitive resulted in her room leaning against you but she allowed for the possibility that further factual development through discovery since her dismissal was without prejudice might change the equation and that was honor and we did not have any disputes with the district courts factual findings as it related to these motions we did have disputes with her application of the legal standards for the combat negativities exception she opposed upon us a requirement that is not in any of the cases active military combat operations that was rejected by slay and taylor and it's not a requirement of any of those cases for the p q de she opposes she said that as mr carroll indicated he said that she looked at our defenses but the cases are very clear that you have to analyze whether our defenses raise issues about sensitive military judgments and she made a number of fact findings that went to that but she never analyzed the case as it would be tried lane versus halliburton is very clear that the district court says analyzes you as it would be true as it would be tried she never realized that our defenses she said that we raised that issue but she did not analyze how our defenses