understanding so i chose to bring this is a federal court claims act case i thought that was appropriate given the facts of this case and given that we had individuals involved who involved who we felt were try to harm themselves or release of theory could with shoelaces and things like that how do you distinguish this case in a case that says it's not just like i involved in military affairs chain of command we have military defendants here hands citizen guy right off of the street who his job was to make deliveries and delivery quitman parts up and down the east coast and he lives in lake wales florida and he was driving with his tongue with  straightforward injury case it implicates a deliberate indifference case it's exactly that implicates the th amendment deliberate indifference to a serious medical need and certainly as someone who was diabetic with an open diabetic yes yes and it was the not only who wound was visible but how it was the condition of the wound if that time was visible as well it was seeping through his socks and that's why he made a very simple request for gauze and crocs shoes which we had which are rubber sandals which under no circumstances could pose any kind of safety or threat within a for him because this was not a sanitary place and he expressed his concern right out of the gate initially he was ignored and ultimately they go and they retrieve the items but they don't give them till they're sitting out on someone steps so i would suggest that of to allow individuals to something that the best example i can give of things i have seen is were landscapers have their wards it closed trailer that has equipment in it maybe fifteen to twenty feet long whole time judge he was in the cell the whole time i mean obviously there are i'm sure a couple minutes at the beginning a couple minutes at the end where he's being processed and then surely and then being released  the united states attorney from the district of new jersey i represent nine of the twelve military defendants in this case the district court was right to hold that this case presents a new bivins context because implicating national security or air policy of any kind they were all operating pursuant to military plans procedures rules that govern what happens when someone comes onto a base with a weapon when you have to be detained by the are obviously the allegations are that they are not they're not pretty is not we're not saying that someone has no right to medical care when they're in detention we just was not giving them the right to medical here when the the question that a puts to the to the courts is what remedy should be available to that person and for a person who is injured on a military base or suffering from injury on a military base congress has already spoken and it can be in foreign nations or in united states it's it doesn't have a geographic limit but and that's my question is it not correct that if something falls under the federal tort claims act that action can't be brought under the military claims act that's correct john ok if that's correct why is not the supreme court statement and carlson that the federal tort claims act is not a sufficient alternative remedy because it's not a deterrent  with a split nd decision about a reporting of somebody having up on that implicates national security that implicates policy here we have a deliberate indifference claim that's your classic claim that courts are supposed to resolve and we do resolve the issue of bivins is should be hesitate because congress should want to legislate instead of us  indifference claim why should that cause us to hesitate i think because that's why i pointed to the military claims act not because the plaintiff can bring military claims or claim but because congress has spoken to people who are injured by a member of the military and said here's the procedure you should follow this is this is how it's done this is the damages available there's a statute the congress has made and validly it doesn't apply to him so they are presuming that someone also want to just once a person is in there logically without gives its word gets me we i'm not aware of a case that analyzes the the context naturally for the different parts of the encounter in  clock in vance in abbassi these are going to cost probably the shortest amount of time but the others are months weeks of occurrence and the court looks at the overall context and here the context is we can allow her to look at various factors right we can look at the service involved we can look at the nature of the claim if we determine that the service involved the military is that have addressed this have addressed discrimination claims injury claims th amendment claims and others various types of injury don't all those claims implicate in some way the chain of command in the unique structure and environment of the military situation not in the sense that they're all service member vs service member security officer claims in both nancy and dover snaring these were claims brought by civilians vance specifically these were not even federal employees they were outside contractors who were assisting military did they implicate policy matters they do because they implicate how the military conducts its affairs on it's up to congress to say well we will have to create a remedy but and tell them we have not created a remedy the supreme court tells us don't look for new fifty s was given l s d but maybe we should remain for the district court to conduct an analysis of whether this implicates any kind of policy that we have said and they have said should should cause us to hesitate whether i ongoing policies that the president made that the military may have or security or anything else but your honor i would want to just address the qualified immunity point as well just i think if if were if were qualified immunity that would have to go back to the to three minutes of your time simply because i do represent two members of this military and they deserve counsel since they're separate from the department of justice here i would just like to always point out that throughout history of shootings that happened since two thousand and nine onwards that these decisions are split nd much like them to come up when talking about the fact that they detained him for having guns there is nothing wrong with that we're not disputing that at all he could have been detained for eight hours which got policies at the twenty people and it's the conditions once he's in that cell well i got your honor i don't view you know the allegations in the point but i do dispute fact that they're trying to expand this on any other situation that's come before the courts a very limited expansion we're saying he doesn't have the right remedy under the federal tort claims act cross and make that clear it's not an adequate deterrent find out exactly what their policy is this isn't a little bit different but it would be a very very slight expansion to give him a remedy that is adequate but that also goes against the judicial mandate that any expansion cos i think that's an important factor and important thing that's going to be considered when if in fact this is going to be extended that it is just leaps favored and it's something that should not be expanded police especially in this situation when you're dealing with  be the united states government congress has specifically omitted they do not want to put person exposure a military person out the courts have consistently indicated when it comes to the separation of powers we do not want to over provide a remedy and that is done by congress if it doesn't that mean therefore that he has a deliberate indifference claim that falls busy under the constitution that he can bring if they haven't for close did they haven't given him the military claims act in marin they found the military claims was a possible alternative remedy in better clock because i was in a foreign nation that's where the military claims act predominantly applies but it's not limited to that and they have said that that's not adequate you cannot bring individual item but ben a clock says even without a possible even without a remedy that i don't sell does not allow you to create a new far i think the key here is as your honor has suggested that defense has not been foreclosed it is alive and the supreme court has suggested that the courts proceed with hesitation and with caution in evaluating these matters and determining whether or not they can proceed and an th amendment indifference to serious medical need to live differen need claim is well recognized in the judicial system and there is an inadequate remedy in this case the military claims act i would suggest as judge or until you noted several times it really doesn't apply in this case because we're in the federal tort claims ambit and carlson has helped very clearly that we can seek to proceed on this business claim  in that regard i'd like to make a comment about fort dix very briefly given some of the exchanges here this morning fort dix is a virtual city and i've handled cases personally there were people get arrested for minor drug charges d w y's a whole panoply of different cases and the key here is you suggestion