is not a case about an employment discrimination and that's fundamentally where the orcs work with this is a question about whether mr franken has any remedy for the wrongs that he's claiming against the u s government and his f supervisor david heloc there's no remedy under the c s r of the civil service reform act for conversion that is fundamentally what mr franken is claiming here he is claiming this property was stolen at the conclusion of employment and never returned to him now the property at issue here were computer files which under what i mean law the courts recognize as just any other type of property so you can think of it as if it was  precious family portraits or of a lifetime award from l g b t q service which was his cause this is what he sought at the conclusion claimants and afterwards from his former employers this was not a wrong that that the government committed as retaliation for any employment act for discrimination for anything any protected activity or or action those allegations referenced in the complaint because mr freeman had a prior claim against the u s government through the e o c which he settled so that framework of discrimination retaliation that ultimately led up to his departure from the  yellowstone to allow employees to keep personal stuff on the government computers when you have a claim then i think the property is still his just as if it was any other physical item that he left there would he perhaps it violated a rule to leave to leave his property to him on the computer perhaps but that's not the allegation anyway you don't understand that we're suing some things to her i think us and i think perhaps if there was a policy that led to the automatic deletion of everything germination and that he didn't go after the property until after that happened then i think it would be harder to make rain so your position is that without a policy of the us government allowing at that a person can store stuff on a government computer and then once they're terminated or they quit or whatever the case may be they have a they have a property right to go get that off of the government computer without policy i think so and i don't think that would be contrary to any other type of property that employers might leave on the premises i'm not aware of the law but forfeit property just because it was left without some sort of procedural or policy rights in and became his property by having put it there so these were not all all items that he created using government quim and some it was simply stored on there from his actions outside   think isn't the implementation it is the it is the content of the material in the computer i think the property can exist in different forms probably can exist on a digital camera cellphone separate  from what was on the government computer and i think those are both types of property the problem here is what he brought into his government computer was his property independent of him for it independently of his work with the government or even this equipment it wasn't could be printed off and then they would be properly printed up it happened before stored in form and electronic format maintained on his computer and i'm looking at a quote now from bush arises a rise out of the employment relationship unquote so you're not saying that the property that is on his computer did not arise out of that employment relationship just because through his employment he leaks property on his place of employment i don't i think that's different than arise from it's not a it's i don't think that stands for a lot for his employment therefore he would not have put it here i think arising out of contemplates that it's because of the job itself that it was there in this then you can put it on these computer see him leave things on his desk because of it's point isn't it yet this was not something that was done because of his point but for his employment absolutely but for his employment he would have been there physically he wouldn't use these years he didn't put anything there because of his employment so i don't think this is didn't provide it that's a problem isn't it well we do know the statutes that prohibit what he is doing here mr halleck in terms of personally prohibiting someone from acquiring a property in one's missing something i thought there was a state law component the civil service reform act is focused on whether there are meaningful remedies available to him employees or former employees for him for these types of discriminatory retaliatory claims there's nothing into the civil service reform act here that would give mr a remedy for recovering these actions he's not suing to recover his property because of discrimination tell you based on these categories well i mean a very reading of your complaint though is that is is that he has i mean because the first several pages talks about how there's been a campaign of discriminatory action against him and that he sued sued the government and that they actually settled their case with him and that as part of the settlement that they agreed to to turn over all this stuff yes that's the that's background that's not the those not are elements of his claims or conversion or you know i understand that but couldn't he get the same relief i'm going through the administrative process presumably for specific performance of of turning over his stuff a separate action for that i don't believe so because i think that's i think that is outside the scope of what the civil service format would allow he wouldn't be then suing on that contract because retaliation or any of those grounds he i think you have to pursu specific performance of that through through they have ministry to process say you didn't do what you told us you were going to do i don't think up to was available to him once he was no longer an employee i think that's why he chose to pursue this route of conversion and they didn't abide by the terms confidential i don't know of that gave him the right to do that but again that would also be an action outside of c s all right and i don't think anything of i think that's not an exclusive remedy in there i think if anything he can pursue this to or maybe and constitutional so just as for qualified immunity and whether this is clearly established right at issue here i think it's beyond doubt that there are employees got stuff from lawyers police officers can't pull over motorists and take their money i think that type of fourth member misappropriation property makes clear this is a violation of his rights there is tenth circuit authority that mayfield case defines a dog as property that he's what's news for i wanted to say a few things about how we view this issue of property and what really is at stake here what we're talking about  data on a government computer the plaintiff alleges that there was a policy that yellowstone that allowed him to use the computer for personal purposes that isn't a distinct question from whether that theta is zero and by the employee who is using that computer so i say what is or statute or regulation that speaks to ownership of data on government computers because of the stage at which this case was determined it was a motion to dismiss there's nothing in the record about that we all work for government agencies were all aware that computer us pretty heavily regulated i don't want to get into extra record evidence of that little incident along wouldn't be wouldn't be outside the record evidence i mean it's just a question about what they saw michael wallace ok differently and also as far as whether what is being complained of here was a denial of access point if so that it's not a denial of access it's property actually the denial  they did it there were two two events in which the agency gave him data or attempted to the first one was where they've nailed it to him on a thumb drive and he claimed wasn't all and now and that's when the communications kind of ground to all is it is it your position that he has everything that was on the computer it's my position that he never explain what was missing you never said i want his file that file and i can say that there were like five thousand files on the computer something i think i don't know that he wanted all of them but there are there just records cited to just record analyzed the plaintiff never even acknowledged the case never attempted to fit the facts into the analysis that set forth in that case there are three factors you look at one is whether the complaint of conduct is the kind that the in the employee the supervisor in this case is employed to perform the second is whether it occurs stance fully within authorize time and space limits and the third is whether it's actually waited at least in part by a purpose to serve the master and if you apply those factors all of the alleged facts are consistent with the conclusion that mr hallett was acting within the scope of his employ to conduct attributed to halleck consists entirely of implementing decisions about a party employee access to files on a workplace government computer it's hard to imagine any circumstance in which this kind of conduct could be outside the scope of employment he could only gauge in this conduct because of his least in part by a purpose to sir the employer and there is no meaningful allegation here that mr alick was not acting within authorized time and i don't know that i don't have an answer to but his if i understand his complaint correctly so if he came on a saturday and all the sudden he couldn't get on his computer i mean in the sense that ivins what we're talking about is whether there's room for a judicial remedy that's not really the same as preemption is it well it's been a lot i think it's been discussed in terms of if action is preempted then you are precluded from pursuing a live look at the question that you're asking is whether congress occupies space was here as a that's not the question you're asking with of and you're contacts and occur only as a result of the federal employment and that's what happened here this could not have occurred but for federal employment it arose because he uses his federal case is not about retaliation or discrimination if you read the complaint he refers the point of refers to retaliation discrimination throughout in connection with every coin and so i don't know how you c possibly say and that takes care of the westfall issue and the torque lying so then we're left with the business claim against and as we've already touched on the are seems to focus a little more on whether the alleged conduct would constitute a violation of the c s r a as opposed to a more global on the basis of sexual orientation and promotion of equality that's prohibited by five u s c section twenty three zero to be ten so prohibited personnel practice to discriminate for against any employee on the basis of conduct which is not adversely affect the performance of the employee or half or the performance of others  een the words if there was a sexual assault was discrimination with that be covered by the ten to in terms of a sexual assault i'm not sure i would but here what we're talking about is role of access to a government computer i know what we're about i'm just trying to see what the limits of the ten would be that's all i mean in terms of the limits of each and would define the limits of your ability to bring a lawsuit against the government that would not be barred by this year and say so i'm just trying to get a sense of whether it's actually stopped it whether he would still be barred from seeking relief because it would be preempted by this year is that i don't think so and i don't know the precise answer to that but my guess the way i would look at is that goes beyond fermentation that is not something else that would be your view you're not aware of any cases that talk about that issue i'm personally not ok i'm aware  that well i know i should say i think there probably are cases but i did not examine them in preparation for the ok think you're honest first of all the reference to section one hundred eighty three mistake this is we attempted to state this claim which i think is clear throughout the language used in these different causes of action denial of access to this computer is rate this is post germination post employment conversion but all the i mean all the claims arise out of that if he had been able to access the computer when he went in he would have presumably been able to download all the stuff take it with him and we wouldn't be here presumably as you know so going to miller standard for the westfall act two elements are that the work of the supervisors performing scope employment is that it is