employment they talk about while on military orders performing their military duties she was working on of sixteen's them yes which so did you beginning a dispute about a situation if you look at what the judge did the judge didn't make any orders about military discipline or military command the judge should not say hey you have to discipline the supervisor hey you have to  and her award of course from the ego but not in the sense of reinstating her into her military rank because and all of the other situations talk about where the person's been discriminated based on their race or their gender while the course of pursuing their military d and i need to check my case excuse me i think it was an us st john's and where judge cliff was very concerned about where is the line drawn how far can we go down this rabbit hole if a civilian secretary is bending over to file a military document in a military filing cabinet on a military base and she's sexually accosted helicopter pilot was injured and died because of some mistake possibly by a civilian but that was clearly in the mission of the coast guard the mission of the coast guard is to go say people mission of coast guard is to patrol our waters the mission of the army is to march into the field of combat set navies with the boats and so forth this was a non combat my client was simply doing the civilian job that she was hired for preparing indeed preparing planes and making sure their maintenance and upkeep this wasn't in the theater of war she wasn't in combat she wasn't activated i mean if we're going to say that she was truly in the realm of the military severe that she should be getting nyla terry benefits a military retirement she's doing military promotions and military back pay but that's what's going on here that's why congress created the tools status technician back in the late ninety's or see the late sixty's because they see that there was a need for additional help but they didn't need to have them on the rules of the military  the rules in the military this allowed the government to save money by not having to pay a very generous and or earn benefits from retirement from v a benefits access to try care excluded national guards technicians from plying me from utilizing the process as a matter of fact the texas air national guard sends you to chew the federal the internal eight yo when it comes to any discrimination on the job there has to be a point where better be an obvious point where something is intrinsically interrelated to their military duties promotion demotion transform that's obvious that is talking about the state readiness and discipline of the military but the day to day activities of preparing to be preparing seven cases like this well in the cases that i've seen and particularly off the time i am looking at snyder and filer which i think are basically agency cases but i think filing one actually be not to a technician cases both of them are killed technician is where there is e o p history saying that fairest doesn't apply here because this was a course of their civilian employment so let's look back to decision on the merits or to make a decision on injury or causation what we're asking for is for the courts to say hey government why aren't you carrying out something that you're supposed to be doing this is been litigated at the agency level three put military decision making you know i was having forgive me i was having the district or ultimately this court review decisions of a federal civilian  the texas national guard as you saw disciplinary action against various military personnel that was part of your it is our right a person can still lose their job in a civilian capacity but still maintain their national guard position there's nothing that the judge has said or i think in our opening we've talked about that encroaches on a military decision if the military doesn't want to do anything about it the military doesn't have to regarding a military personnel decision but when the military takes on the hat of a civilian employee or a federal civilian employer they have to carry out their duties in that aspect and when i say duties i don't mean military duties i need as i said million federal employees duties transfer enlistment promotion separation and discharge and actually the judge in our case did even order discipline in the military and i believe it was the of who suggested they might want to look at it basically says that there are no facts in this matter that rises to the concern of anything of any investigatory issues that may be raised regarding the military discrimination that are there for any facts that were raised that  review done by cursive billion supervisor who happens to also be her military supervisor on the weekends but not on that case but not of that situation none of the facts all the findings of fact occur during her civilian employment if the judge had ordered that she be transferred if the judge had ordered that he be removed from service if she had ordered that or if she had ordered that the military promote her but that's not the situation here now for getting around and did i answer your question i want to make sure i'm not i think i understand your response i'm sure it's responsive but i understand what you're saying are there any of the questions from the bench seen on i mean i shall continue and shall not stop with regards to their enforcement actions e o should not have stopped the e e o c regulations the c f r r and contradiction of what the u s be entitled to deference even if the burning question about think there is any question about that at all so again that i think takes care of the claims against the e e o c there's there is no claim against him by their own regulations the test is whether the claims arise purely out of the dual status technician's civilian status and for the reasons the just record gave these claims to not purely arise out of the court may not reconsider what a claimant sapir years did in the name of personnel management including determining performance level so that i think is just right on point and controlling the other claim is the no light duty yes the watch case i think is the best case that lays all this out basically as walsh explains these techs are only nominal federal civilian employees what they do on the job both during the week and the congress made them civilian nominally civilian so that it could give them pay and benefits that federal employees receive that's title federal claims no  impossible to disentangle their military role and command structure from their civilian employment so and that's because as we've heard her her civilian superior was her military commander he was a master sergeant so in both the weekday and on the weekends same person was her superior that the person who did this performance an evaluation on the civilian side was or her  military superiors and so she would be and is challenging as sensually military decision again what these people are doing she's she was a mechanic servicing f sixteen fighter pilots it just doesn't get any more is that if the court ends up dismissing without prejudice then the e e o c will then feel free to again take up enforcement efforts on the order of whatever that according to its own discretion  but again if it's i think the district court dismissed the case on the merits so that under the school's decisions your decision on the merits is presumed to be with prejudice is along the line to disclaim is question and that is if if we affirm what remedy what course of action is available to her and i guess your answer is there is no i thought you were saying initially that maybe the e e o c could again take up efforts to enforce its order but now you're saying there's a dismissal below with prejudice so maybe she's done  we if you're first of firm if i understand the just for court's ruling correctly then i think the e e o c would not take up enforcement of its orders again because the district court as i understand it dismissed with prejudice because so that's an interesting question because a lot of most of the fairs cases that find of the fairs doctrine is applicable to smith's for lack of jurisdiction and the government does move to dismiss on twelve  b one grounds so that's correct but i would also say that if the government didn't raise the fares doctrine below and tried to do so we couldn't do so on the merits as to the government below or here so the fairest right you would you would say the fairness doctrine applies and you would say it's there for the district court like jurisdiction  to to do anything other than the smiths the claims against certainly against the guard of the claims against the e e o c i'm not so sure right because i don't they weren't dismissed on fair as dr grounds to court dismissed those for lack of proof of the elements of mandamus right i'm sorry i meant just as to that i should be over i'm being overbroad i don't mean the government all of the actual justice to the military government dependence but i think that's correct  and again with respect to the light duty claim the plaintiffs allege that because this happened during the work week that's the end of it and the soup can be brought it's a billion but if you look at walt's two things first of all walt said that all the claims in that case also occurred while the plaintiff was in a civilian status that's five thirty three f thirty two ninety five so i think walsh is directly controlling and rejects the plaintiff's argument there and then if you look at what the reasons were that court gave for dismissing that claim under under fair as it said a lot of things that also apply here for example it's that this is all that i'm sorry i'm talking about the filer case that if either was the case that occurred after welch and if you look at six ninety f thirty six six forty nine the court said it noted the fact that the military and civilian jobs were identical that's also true in this case in that case the alleged tortfeasor was the supervisor both during the week and on weekends that's also true in this case and then third it would the claims would require the court to second guess the military personnel decisions that's also true in this case when you when you know it's from the record it's the military did actually conduct at a military investigation of these claims and that and that investigation resulted in a finding that the claims are unsubstantiated so what plaintiff is really requesting is for this court to second guess that it's clear that again the the just record correctly dismissed those claims because the filing of the civil action terminated the e e o c is ability to rule on those or to take up another in first but efforts but it's also the case counsel or issue a show cause order but if you look at the regulations they use the term may for both of those forms of relief so their discretionary on the e e o c is part and again a discretionary duty can't support if i'd be happy if you're if you'd like to discuss the conflict of interest issue that the plainest phrases which they didn't talk about this morning that essentially they're saying the same same government lawyer can't represent both  the national guard bureau and that claim fails because as the office of legal counsels explained the client of a department of justice lawyer is the united states so there is no conflict of interest and that does not conflict with the texas professional conduct rule because that rule prevents a lawyer from present representing the interests of another client and the key terms client there so again my client is the united states general sovereign immunity and the adjutant general is a state officer not subject to that mandamus statute thirteen sixty one never has argued that the adjutant general is a hybrid state federal official but the two cases that she cited in her officer whole bodies or she is a hybrid federal state oppression official in the context of the mandamus petition why does it matter that rips come doesn't involve title seven that situation obviously when when if a ministry of john says there needs to be something done in the military sign that is infringing and it's the fairest bible and that case could not be upheld but this is not that situation until there were no facts that were involved in the military e o process it was all in the civilian us and so wallace in that aspect doesn't apply here with regard specifically to the a failed to act within one hundred eighty days both with its first appeal for the before the us all and also with the petition for enforcement two and a half years for the first of all over almost a year for the second  briefly on the conflict of interest issue d department of justice may allow one attorney to work on a case where there are two interests involved but just because  and it is fundamentally unclear how a party who is representing the interests of one has complete opposite interests with and represent the other party less complete opposite interest the smith and equal employment which mr deal brought up the cases show that the texas air national guard in the texas national guard accepted and that parties here before us now if the texas air national guard is saying that they have absolutely no and obligations to comply with any federal issue they need to get their money back from all the planes and one if you affirm with the exception of the e o matter and us and forgive me for at the terms you had used earlier but if the e o still remained viable their responsibilities then of course she can go back to the were gone and as no one has contested she was discriminated against and as the ninth circuit says sexual discrimination is not a military mission and it shouldn't be allowed to be here either i just don't work there and he still works there hasn't he doesn't work there because she can't because he's one hundred per cent permanently totally disabled and she hasn't been able to do her national guard