for your honors my name is david abney i represent the plaintiff the palate it's a very interesting case maybe not the biggest case in the world but the principle involved is important and there's of course many ways to look at a case immersed and actually the judge got right down to the basics of our case and before you get too far down to the basics there's something maybe a little more basic than that i want to call federal agency yes or was there a claim presented to the f a a in this case yes your honor and it was rejected and i have not seen anything any showing of that in the record well that there's some place that i missed that this is not alleged in your documents are in the record someplace i don't know if i submitted it to the district court with the complaint but i actually i did do it and then we did look through the complaint within the proper time period and i believe that the government and its well i'm not quite sure if in their response they have they can see that as well and maybe when counsel gets up he will be able just to say that we know there wasn't any such as they but it did happen i didn't lot anyway if we return a quick shake the case was this it was an invasion of privacy that this is one of these cases where the cia was opening people's mail and without any sort of legal authority to do that and so the plaintiffs sued for series of defamation counts and then based on the same facts a whole series of falsely invasion counts and this court said well you can't do the defamation counts but you can do the false light counts because under nevada law there is a difference between defamation and false light invasion of privacy in arizona law there's a very clear difference between defamation and falsely vision of privacy sure but the question still is is the conduct the same it may be that the big thing that i'm missing here is that my clients found out about this long after it happened or just out of the blue we found out about it and we don't have any proof that is reputation was damaged in any way and we never alleged that short but reputation is so therefore you go on invasion of false invasion of privacy false light right where we could have done both i think as in the flowers case we could have gone both ways of course would be lunacy to do it both ways against the government because defamation is going to die if  question is under federal law absolute is a different thing than libel slander misrepresentation or deceit i don't mean to be cavalier about it but i don't think it matters what sort of federal common law might be out there on defamation as opposed to fal as you bring your claim under the law of the state or of the jurisdiction where the toward occurred and out of the law the jurisdiction of arizona false light and defamation are separate torts has been recognized explicitly separate court torts since because under deval all you can do that under california law apparently they're merged together and regarded is the same and in fact in california if i understand the case law correctly you actually have to prove some sort of reputational damage to get a false like claim under these sorts of things  this morning i'd like to address three salient points as well as feel any questions you might have in the recent supreme court decision and dolan first as united states first mr adams has focused on a strict application of arizona where third you have any knowledge about whether there was a to a third party the phoenix media necessary for a claim of defamation paragraph fifteen plaintiff alleges the requisite harm necessary under section five fifty eight of the restatement he states that he suffered severe harm and mental distress and quote special damages dissemination of information what was allegedly done here apparently someone at the f a a either held a press release or did release something to the media and it mentioned the plaintiff mr adams in a disparaging way which was supervision of a construction contact in the black neil case they found that he did not apply because it didn't arise out of the dissemination of information didn't arise out of an attentional torts exception as listed there however in the newsday case they found that information was disseminated information was given concerning the value of housing by the f h a that arose out of the misrepresentation exception this case arrives one for one isn't it for this court's prior decision in the thomas lace your opinion in which th the claimant reclassified her action for slander is one for negligent infliction of emotional distress this circuit specifically held that you can't get around the exceptions to the tort claims act in that manner your honor and you can't nor can you sidestep the allegations such as plaintiff stated that they there aren't aware of the damage to the reputation of the circuit specifically how did the earth quote nothing more than an effort to remove unnecessary damage element from an intentional to looking at the restatement and the definitions themselves it arises out of an intentional tort which is barred by subsection aged twenty six i am playing it also brings up the case of jennifer flowers versus  other case listed was one from the district of south dakota a gross versus united states and did the same thing they gave no analysis at all to the conduct by the united states looking beyond the labels as this court has done in at least five opinion since that time  a case about labels or smoke and mirrors or characterisation it's a case about arizona substantive law arizona substantive law says that there are certain things you allege for false light invasion of privacy or certain consequences that flow from that the standard of proof is different for instance for false light the information can be true and the defamation if it's true you lose your case period and here what the his deputies and certain of his employees were or were characterized in repeated news reports as being incompetent and justice feldman said well you've got a false light invasion to here you've got all the elements there is a distinct difference in arizona law it wasn't just making that up on the spur of the moment he was following that was statement which arizona traditionally follows and following the read versus real detective publishing case from  five which if you have a chance to read it is just a wonderful opinion discussing the differences at mid century as the court to see that between defamation and false like and that is a tradition that arizona courts have carried forward through god the hearing for every other case in arizona these are very distinct matters it's it's different the federal tort claims act has specific exceptions as we check noted the false light invasion of privacy is not one of those exceptions we're entitled to allege it as a separate tort and just saying well you know carol you could characterize it as something else that doesn't really solve the problem it doesn't really address the problem just sidesteps that there are many torts many situations that could be characterized differently for instance a medical malpractise you could characterize it as an