was an employee or an independent contractor with respect to the united states government when he was driving a government owned bus full of active duty soldiers about forty forty of them from the fort polk army base in route to the military charter airport which is a straight shot about twenty or thirty miles down the road he was in route allegedly turn left in front of mr burley causing the accident and so your honors it seems everyone is kind of side at the same factors in terms of what everyone needs to look at make the determination about whether mr james is an employee or not and so i'd like to go ahead just jump right in to what everyone seems to recognize is the most critical factor which is whether the government had the authority or the power to control the details of that work and i miss i think those words on purpose were here a contract between the g approachable contractor and also james employer your honor this is a contract that i have never seen before so the my understanding the way it works is the actual written contract was between the government and  s t ok and then attached to that contract was what's called a performance work statement which by its own terms applies to the contractor the prime contractor d s t and whatever subcontractors hired by  m's direct employee mr james and what does that speak to is far of employer employee relationship well your honor certainly a factor i mean one of the factors of the eleven ones is i think of the ten quote other factors in addition to the most critical one is what did the parties contract about and what did they say and that's there's no doubt about it that the performer's work statement is a critical piece of evidence i mean both sides cited for their position and talking about the dismissal with prejudice are not the remain part of the case i am talking about i'm not sure i quite understand your question oh yes the dismissal with prejudice part thank you now i got you you're not you're not are you going to argue about the remaining improper today or not you know i would invite questions on it but that was not what your argument is going to be about it's going to be about the dismissal with prejudice heavily the apple e's quoted heavily and you know i can refer to it as the play book kind of the rules of the road for how the mr james and albion were to do their work out it for polk and so one of the things some of the favorite provisions i want to go ahead and address the straight up front that are quoted by judge dredd on the underlying decision you quoted by apple lees are some rather cuckoos yury introductory sentences i'll call them  rules of the road what you know what the contracts about and it says the contractor which is defined to include l b and can achieve shall provide all management supervision personnel training equipment and supplies so if you were to  stop right there it sounds pretty bad right it makes it sound like the contractor had the discretion to do whatever they want in order to accomplish the goal of getting the soldiers you know where they needed to go but the problem is if you look at the government just provide all the equipment except for the bus to transport the soldiers the fuel the training equipment to train them to train mr james and how to drive the bus the desk the chairs the puter equipment a place to work credit cards for the bus pretty much you know we put in the affidavit that the government supplied ninety five percent of all the equipment so when the contract says the contractors to provide all the equipment except for ninety five percent of the equipment and so the same goes for training this seems to me to be a very crucial part of the analysis because we're talking about driving a bus and there's new feasible way really to have a government agent sitting it next to the bus driver tell him when to turn left turn right i think the most you can do is give the person the equipment train them how to use the equipment and if they do something wrong get an accident have them write a report of what went wrong so in this case the government says that the contract is close to provide all the training but then if you look at the exceptions section three point turn point one of the performance work statement says that before killer james could even step foot on the government's bus it had to take a defensive driving course which is a two hour block conducted each wednesday by the installation safety office which means that it's done by the government and they must attend that prior to being licensed which with by the way the license was issued pursue its hooty authority the base commander or operation of the bus and it's done with the government equipment including the software the widescreen t v s at the base pedestals the whole thing that's an exhibit three dash two of the performance work statement i'm sorry to interrupt you with your jurisdiction question but it really lacked years diction to review the remain and order how do we have jurisdiction to review the order dismissing the third party claims against the united states and even if we have jurisdiction to review those claims why should the dismissal be without prejudice that's sort of the friendly question thank you your honor the first of all i think the dismissal could be without prejudice first to get to the jurisdiction where we sued the united states a third party demand that gave the district court jurisdiction if not you know i think the case was pretty clear on that so if we believe that there's no jurisdiction over but i'll go with you there ok and so if i understand your honors let me just kind of give a review of what i you know of what happened when i were removed did it was pursuant to section fourteen forty one federal question right the idea being that under the f t c a that the issue you know mr james either is or is not a government employee you know that's something for the court to decide and so i think for because i don't see certification first from the dish to turn our skis meet the attorney general and so judge drell allowed me to go ahead and question of cation pending that we waited for the attorney general to respond to it now what i would say and i think that's been acknowledged by the police and their underlying briefs is this whole issue whether mr james is or is not a federal government employee is almost identical to the fourteen forty two question of whether he is or is not a federal officer or agent but we're not going to look at the fourteen forty two question because we don't have  because this wasn't removed pursuant to fourteen forty two so we cannot do fourteen forty two that's not in our stars ok right do you agree with that well your honor i would say that it's did not articulate the words fourteen forty two i have to concede that i would say that however that the issues of fourteen forty two federal agent are very similar if not identical to the federal question issue of whether mr right you're saying the statute that says that i should have got an attorney general certification first however this is the one part of judge charles decision i did agree with where he said you know just pursuant to so you're not bouncing back down and coming back up  go ahead all right so go ahead and tell me why it should not be dismissed without prejudice rather than dismissed with prejudice that's i mean i'm actually jurisdiction over him but he did it at the same time that he dismissed third party demand against the united states so would have it happen simultaneously with but if there's no jurisdiction over it then they can't be decided as a matter of law you don't care so much about how they do that you care about the result so for example in one extreme example the government really shouldn't care how those forty soldiers got to the military short of airport they should really care that they got there on time in more of a employee situation you would care about how they get there the mater in which they get there and you want to have the control over the way that they do it but what about supervision as far as  before the supervisors who supervised did work ok so i believe your honour's referring to the part of the contract talks about the supervisors well not necessarily the contract said mr james had to work a certain shift in terms of time on time off that sort of thing if he were second couldn't go to work realty call up you know that information is not the record what i do know your honor is he couldn't just pick somebody of his choosing they had to be pre approved by the government that that i do know is in the record that the difficulty with that is that the case law that was heavily relied on by the magistrate the district court and opposing counsel of the supreme court cases orleans and  and you only cited one of them in one clause in your entire brief but those cases i thought stand for the broad proposition that of course the government's going to describe specifications and regulations but the question we're asking is did they physically supervise and so they contract with someone else to physically supervise even if they have highly detailed regulations that law would suggest it's not an employee or your honor this is where i don't mean to answer a question with a question a kind of post the pins about the work that you're talking about you know i raised certain things that the government did control for example dress lunch break that sort of thing in a kind of getting for being a peripheral issues so what i can say is that for the substantive issue about the you know the action that caused the accident it's obviously impossible to have somebody sitting in the bus so what about the supervision of the actual stuff that matters the the training to drive the bus the updated training to drive the bus and then what happens afterwards if you wreck the bus you have to write a report that your honour's i believe we do have evidence that the government obviously controlled that  career as a standard of review your honor you know my understanding is that it's to novo that this court can you know review the fact the facts as set forth in the record i'm not sure that it is clear  subheading deal where he is citing bad language for me in the performance work statement in the performance you know that says that the contractor controls things hiring project managers that we're supposed to do we have to develop a safety plan you know all of those i recognize the problem is and what we contend is if you do a deep dive into that contract everywhere you see one of those conclusion rescind it says and you know for example develop a safety plan sounds pretty bad the contract r supposed to be the one who develops a plan on what you do you know how you drive the various vehicles what you do to prevent accidents the problem is if you go under that section one point eight the army or excuse me the government you know kissed anything to chance they cite a variety of army regulations the first one being army regulation three eighty five dash ten which i believe is in the public domain and it's you know there's it says the contractor supposed to develop the safety the third party demand in the first place and or and then whether or not this court even has jurisdiction to hear the remand and or the third party demand and this way as i think is was going to argue the point raised by counsel about the contract itself so starting out i would say all of this could have been avoided from the very beginning had the westfall act been followed by the government judge asked an important question the westfall act itself gives i think the answer to your question under d two n or d three under d three if in fact the court decides that there's not going to be a certification and i counted digressive we have to go back to osborne to be haley to some extent too but under d three if the federal judge decided and again i don't know whether he should have ever gotten there in the first place i think more than likely once there had not been the original certification asked for by this person and tellingly they asked for it in the middle of the case and then at that point the magistrate judge then predetermined it my remain and where i think the remained should have been done right away and then getting back to my original point yawners at that point the westfall act then provides perhaps they could have come in the employee not the insurer not the employer the employee could have come in and then asked for the certification itself that never happened here in fact if then the judge then got to the third party demand and for the reasons that the third party demand is still the denial of the third party demand was based on the jurisdiction only issue lack of federal tort claims act because the west fallback wasn't followed therefore he couldn't have heard that and then even if you give him that he did it's still a jurisdiction issue so that separate order doesn't apply to reagan reagan is in applicable to this chase is distinguishable because in reagan and all those other cases there was a original federal court jurisdiction somehow that didn't perhaps be the the westfall act by giving them the right to be in petition the court but that should have been in state court and i think one of the the court opinions are read says in any way you know frankly i just thought from the very beginning that the court should not have even heard the twelve b one motion and i think maybe that's led to what westfall which would basically visser rate the holding of westfall and i go back to the i was born b haley this is a different animal when you talk about westfall and there be an appeal you raise a point if you in your perfect world we would distinguish reagan and say that it should never have been considered at all and therefore it's dismissed without prejudice that claim or else we don't have jurisdiction to decide it just like we don't exact issue where there has been no original certification it basically says at that stage no really man has to happen the statute itself says it has to happen and even though the court may have inadvertently ruled on the third floor to demand that it shouldn't have i still think the best remedy at this stage of the proceedings is everything is remanded because there's a lack reagan if you don't distinguish reagan then i guess yachters point of it having to be without prejudice would fall within line of what the westfall act says by giving them a remedy to then seek judicial review of that certification or not certification i think the facts of the case or alternately based on the contract itself are ultimately going to fall that it's a it's really an exercise in futility because the contract is so clear that there was no control by the the government whatsoever to in this contract that we're going to it's you know for for the wrong reason i still think the trial judge got it right by holding that the third party demand was not proper under the contract i just again don't think he ever had the jurisdiction the federal question and they brought that up now because the because under the westfall act they had to ask for a g certification and when they didn't that destroyed their basis for removal in the first place there was never i don't think there's a way to just say federal tort claim when i didn't when there was never an original jurisdiction type of claim being made it was totally a state cause of action against a non diverse defendant so i don't care a lot of cases where a government employee a suit in state can work and so that the employee comes in remove this case it was not a legit he was a government employee so therefore the westfall act was invoked at that point i think the distinction in all of those cases and in all of the cases in which the courts have taken up on appeal of a collateral issue have to do with cases in where there was a and original federal court jurisdictional claw or book that you can get and then later the court dismissed those federal court issues but then declined to either fall appendant or supplemental jurisdiction and that's how they got to the point of some of the cases like waco and or basis of the removal well i guess you could but then i get back to some of your later your pronouncements on fourteen forty two just recently in the savoie case and i think you have to go into a whole different analysis of whether fourteen forty two would even apply even if you gave it because again the federal government didn't direct this person and there was no particular federal remedy on the fourteen forty two in my judgment i think i think the best thing to do is you know maybe correct how this was done procedurally but then find that the court never had jurisdiction to hear the third party demand nor did it have jurisdiction to even hear this appeal because regardless the court got it right on the remains and if the remand was based on a jurisdictional issue then there is no jurisdiction for this please the court the motion to dismiss third party demands filed on behalf of the government in this case focuses on the on how the language of the d s t contract dispels the argument that the federal government exercised the requisite control over killer james's daily work such that he would be converted from an independent contractor to a united states employee under the federal contractor with the responsibility of daily supervisory duties such as hiring management ford's workers bus drivers providing supplies and equipment that are not otherwise for his by the government and also putting in place training programs for party plaintiffs highlight factors such as the government providing vehicles work space and other items for contractor use yet as cited in the magistrate's report recommendation which was alternately adopted by the court of the contract also provides that the contractor is responsible for maintaining the vehicles the work space so here what we have is an important distinction between the government imposing standards and guidelines and protocol to which the parties to these contracts must end here versus exercising control over how the standards of the processes are carried out and i believe that is why the case law such as orleans and a recent right man to support the government implementing requirements for the contractors licensing and training and even background i think the correct result was reached the united states was the third party demand against the united states was dismissed ok but should it be a dismissal without prejudice because we can't x we said we've s cases that a dismissal with prejudice is a final judgment on the merits to dismiss with prejudice under twelve b one is to disclaim jurisdiction and to exercise it so i'm concerned that we should have to we should modify it or remain to make it without with without prejudice do you have a comment on that or your ira i would respectfully disagree i think  that you have a case that would tell me that that's wrong not at this time ok but perhaps you know the nature of the issue decided you know the finding of no employee  i mean where we're going to go from there somehow allowing the government to influence contract the compensation where it's clear from the record and from mr james's discovery responses that he was paid directly by l b m not by the government t contrary to what councils with their party plan if as we cited the language of the contract clearly establishes that the government did correctly so ok so let me just say a few words and i'll be happy to retain any follow up questions you have on the removal and that sort of thing but one point i did want to make is in the f t c a it almost invites analogy to private parties i think the words are in there treat the united states as if a private party and so i did you know i was thinking of analogies because you know i've read the cases in terms of people in my position and i could and i'll tell you there's not a ton of  of the federal government you had a private citizen or private party like wal mart they have a lot of employees they have hundreds of them up and then so if this was a if mr james was driving a bus owned by walmart full of walmart employees go with one wal mart location to another walmart location walmart trained them walmart paid for the fuel walmart made them write an accident report after the accident i think most people would probably come to the conclusion that they you know had the authority to exercise control of most probably employees and so i think that's a fair analogy for this case is that hypothetical assume a direct tie or is it like the fedex case is or does it assuming multiple wall there you know a separation that the question becomes how thin is that supervision because the ultimate question is who's really the boss here just because the real boss may hire somebody who are somebody else who hire somebody else if all  communications and the directions are coming from the top guy then i think the factors of who's really in control who's got the authority to control the details you know that's why yes it's important to know and you know those various walls but overall i think it's a you know if you look at who's really in control here it's the government as they should be i mean we're talking about what what what a huge using the factors that have been identi d instead of the word control director daily physical supervision which factors your most significant as to physical supervision of him as a bus driver ok ron i'm glad you brought that up i would like to first i'm going to answer the question it would like to first make a distinction because i did pick this up in judge drills ruling and a couple of the other decisions all of them kind of talk about hey the critical factor is the authority to control but when they rule of rule against me they cited lack of direct physical supervision which is a constriction of the test right certainly evidence of direct physical supervision is evidence of control but the test is not or that critical test is not evidence of directress of physical supervision it's who has the power to exercise it now to answer your question my best factors are going to be the performance work statement and particularly those  cited on the training of the bus driver because i think that's critical in terms of the accident that's involved here spurs particularly sections three point ten three point two point one and then here's a long one one point four point four point three point two which basically says it all operators of the government vehicles have to complete an army accident of wardens online course using army computers i think that shows control i think the fact that for this particular transportation of the soldiers mr james was directed to pick them up at a specific location at the at the army base his or your spot forward at four thirty five the flight didn't leave t i mean as a funny aside you know they're directing the time they're supposed to pick them up four hours before the flight where he's supposed to pick them up they give him the training to do it they pay for the fuel to give him the bus and then when he has an accident they can write a report