what i can't tell which of two things you are saying are you saying that this conduct was not intentional or are you saying just because it's intentional doesn't take it out of the scope of the  different question which is because back to the very descriptive that you began with the sort of the poor his own amusement looking through the blinds and in order to muses fellow coworkers how was any of that within the course of his employment which is another jurisdictional requirement that is necessary in order to where you saw an immunity i mean to engage in horseplay what does that have to do with your the defendant's job as a postal employee understanding that your claim doesn't sort of sound in battery and that's the standard we've applied it doesn't sound in battery unless you one hundred percent can win your claim as a battery claim thank you are an appreciative question  actually what we're saying is that it's not about every claim we feel we can win as it is an act of negligence on the part of the good that actually wasn't my question my question is do you think that a claim is not covered under this exception for battery and less it is a one hundred percent sure thing you're going to win this case as a battery claim but i guess what i'm saying is this sure sounds like a battery claim and whether the government can go into virginia court in argue successfully that adams is distinguishable or not doesn't really much affect my thinking about that because it's a claim that your client bodily integrity was intentionally violated when it came into contact with some substance whatever we're going to call it and that sounds like a battery claim i don't know one hundred percent that you're going to win in virginia court although it looks to me like you might but i don't think that the question it's just a nuff that the grab i'm in of the complaint sounds in battery w that would be a new law created in virginia that has not been through the through the process of jurisdictional review and consideration by the state courts is a novel idea there are many questions that it we have case law saying this isn't a state law question that when we look at the two thousand six hundred and eighty eight exceptions that's a question of federal law and we should be looking at federal common law and sources like the restatement so would that make you more comfortable if we say that as a matter of federal law this pretty much looks like a battery claim to just the equal the question as to whether d it's a well the st question that i would have is i'm not aware of the employment exception and i recognize that was the focus of the of the briefs but it is a jurisdictional question and it seems to me that if this falls outside of the course of employment battery or not negligence or not it really doesn't matter and i'm still having trouble trying to figure out how this these events as you have described them fall within the course of employment i'm going to read you something from a virginia supreme court case and i know it's not fair that because you know you may not have it in front of you but here is how the virginia supreme court would define something that falls within the course of employment st it has to be something that fairly and naturally incident of the business of the employer so i don't see how you know engaging in a prank  a scribe here is at all incident to the work of the united states postal service and nd it has that whatever the act is has to be done while the servant was engaged upon the master's business i suppose you can make an argument about that but it also has to be done with the beauty of perth or the masters interests or an attempt to perform the master's business and again engaging in this kind of a horse play activities just doesn't seem to me to at all be consistent with the work of the postal service and in the last element is that it can arise wholly from some external independent and personal motive on the part of a servant to do the act upon his own account it seems to me that the things that we would happen here i mean this has nothing at all to do with mission of the united states postal service or the specific work but the servant in this case the employee was the king should have engaged in as a custodian of the postal service so i would it just seems pretty clear to me that this case so i don't suspect that there were there is an issue i don't believe that there is an issue with the status of there and it just comes down to a matter of respond yes hear hear all right thank you arises out of a battery as opposed to a claim arises out of negligence before you get to that what was why didn't you rest on this issue of the course of the point i'm missing something there you're not your honor and of course the and the district court is so i also was curious like why not this like this seems like a i mean i don't want to tell you have argue your cases but this seems like maybe a stronger argument think contributory negligence and they both come well after the threshold question of you know contributory negligence comes way after the expanding law whether on the federal side or the for genocide and that's true because federal question is not has a plaintiff successfully pleaded a case for battery the question is does the claim arise out of a battery as opposed to one of necklace so it would not be saying that there is a cause of action under these circumstances in virginia or battery just that for purposes of deciding whether the u s has point out is the argument that united states is making and we're the court to agree with that the effect of the court's decision on that argument would not be that a claim falls within plaintiff and so it's both of those things so it's not merely that someone did something intentionally it's that a person did something intentionally intentionally so that someone in this case would hear the horn or that someone would be touched by would be contacted by the intentional act so again this is not this would not be expanding the scope of the twenty six dollars a d h intentional tort exception it's are just saying it doesn't make it so that is absolutely correct and what i would point out for you too is so going back to the scope of this employment argument you were saying all of this was while he was working at the postal here but that wasn't the question the question was how is his dip a thing of the blind the property of the post office so that he could carry out a prank within the scope of his employment the fact that it was repaired  part thank you mr spinelli i'm bad for the court again i want to thank you both for your arguments here this afternoon we very much appreciate that and of course you can't come down which you personally but know that the you leave here with our thanks and gratitude and