guess you could call it the all ranks club and can't shelby which is the actually the largest state owned train facility in the country mr gillmor was under this camp or is it adjacent to that it was a little unclear in the brief is it actually on the physically on the  subject to the mississippi personnel board policies the mississippi appeals board gilmore fell under those policies and procedures as well as does every employee there at the orange club now course colonel michel is a national guardsman which the united states agrees generally is a state employee except when given the federal status of the westfall act which all falls under title thirty two as to what applies as to whether or not colonel michel would qualify for certain acts as a federal employee now originally the district court actually granted our motion to remand and found that gregory machelp colonel michel did not fall into the federal status but one of motion to reconsider he reconsider his subsection that the government references in its argument colonel michelle's involvement with the rings club does not qualify under federal status and i would point the court specifically of course it's almost as to interpretation there's not a lot of statutory interpretation done by the courts on this particular statute but section five o t with a title thirty two involves drills and field exercises and it's very specific in what qualifies for duties under this sub section section five of us subsection two which is the only applicable section here are you but you have it says that the trainer duty order to be performed on  support trying operations and training missions and i would agree that the operation can't shelby in general would apply subsection b but there's a but in the statute that's in the says but only to the extent that such training mission and train operations and there's a subsection one subsection two subsection one applies no doubt but subsection two says are only to instruct active duty military foreign military department defense contractor personnel or department of defense of the employee s the operation and every employee of the all ranks club do not fall under the statute because they are mississippi state employees they are not department of defense employees they are not even department defense contractor in personnel only apply to training missions and training operations to the extent that it is the instruction of active duty military or military personnel this restaurant on campus has not a single or on the base does not have a single military personnel in it it is strictly state employees run by the state of mississippi and they not a single one of the employees to my knowledge would even qualify under section f which is clear requirement of the statute just like in there's another case if the legislature intended to carve out or include these type of personal laws as they could have done that it's at the relevant inquiry what  shell status is and we spend a lot of time in on the briefs and you've mentioned here today with the status of the point if as well as the other employees that work in this club seems to me the case turns on what his status is i would agree that his status is pursuant to his national guard duty he would actually change hats and have official time as well as private time or private responsibilities in which he would be subject to like a private citizen subject to all of the well it's because  i guess the best when target is the statutes that under say title thirty two there are several different duties which qualify for federal status such as thirty two u s c one fifteen applies for funeral processions for military so the legislature has carved out all competitions they have all these different duties that the legislature has undertaken to list and well it is generally a mississippi national guardsmen or any national guard across the country is a state employee unless they fall under the provisions of a statute  instrumentalities this this particular outfit here's a state on facility that is not it's not even subject to that mess and book that the army puts out now in a situation where you have a definition that what you what what this creates i f your argument is not up held is sort of a vacuum because under state law there's that mrs i assume you're going on that state law that protects whistleblowers criminal and under federal law all you've got is a tort claims act if that's true that doesn't even cover intentional conduct so i'm not quite and i don't see any other is there any other potential remedy status and employees would then be able to take advantage of the nass in the administrative agency procedures they could appeal that right they don't have that option here so any wrong done by colonel michel in this role they have no remedy for the except the federal to claims act which which they need don't fall under any agency under federal law so they really don't have any remedy that they could say except under state law which is because colonel michele was acting in state the past at the time and it believe me those people are but active military who serve in those roles now if we don't camp pendleton for example or contractors and i believe that those would fall into be a big contractors under special a federal base like pendleton or some of these other bases around the country  club which is state run state operated all employees are subject to state control and whenever colonel michel is acting over that particular entity there is not a statute which under federal law especially section father to you or any provision under title thirty two which would afford him federal status which is why the courts were able to rebut the u s attorneys certification here by just simply especially since mr gilmore is not active duty military for military or deity contracting out go back to this if this were camp pendleton or somewhere where they have a department defense contractor who is providing these services or if this  facility was subject to not appropriated fund personnel policies which the army has a handbook for those types of facilities would be in a different boat because those employees are actually considered for some purpose barrel employees this is not that kind of a silly this is a state when the complaint of conduct occurred turning to step one is whether current record michel is a covered employee under the federal tort claims act and the language of the federal tort claims act says that he is the like the language states that members of the national guard engaged in training on duty under certain sections of title thirty two and entitle him to protection and the westfall act here the relevant section is five of two f the united states before the district court suppose he while in the course of duty on camp shelby had gotten mad at somebody and just run his car over where were where would that fall within the law so that would fall the step to analysis when that conduct was in the course and scope of his employment well suppose he was rushing to check out something that was going on on the base if he was driving to check out something on the base in line with his duties and he ran over someone then yes that would be a covered act but as you know the tort claims act does not cover intentional acts right that's correct that would be and said this in other words this is an employee who has no protection whatever f available through the civil service so i'd let you know this this argument results in what seems close to an absurdity to me when your honor that the federal tort claims act is just the nature of what sovereign immunity allows in the united states when it consents to be sued who sets out explicit ways of the united states can be sued and sometimes you're correct your honor that it is an unfair and harsh result but colonel machelp here because he  who is delegated to serve in that capacity at the military facility what their responsibilities or with regard to the all ranks club is there anything in writing that says oh by the way in addition to all of these other things drilling the men and being responsible for requisition and whatnot you're also going to have to do a b and c over at the all ranks on our no star is the quick answer however on the army regulation six hundred dashed twenty it lays out that installation nothing to do with the military however it is your honor in response your question earlier actually on the base this is a restaurant that services not only our soldiers but also civilians that the profits of this not appropriated fund instrumentality actually done back read faeries doctrine also title seven when these employees are on five zero two f orders they are considered federal employees in other contexts such as title seven and so it's certainly possible that she would she would still have a room to follow title seven action but it wouldn't be against colonel michel in his individual capacity because title seven can't be filed against an individual and you know you could have been against the state of mississippi possibly i'm not sure what the bar would be but it certainly it certainly could not be against colonel gregory michel under title seven but i will say in the context of title seven that colonel michel because of his father to the orders would be considered a federal employee and again your honor i understand your concern that she may not have a remedy in this context but again it's just that it's the nature of sovereign immunity her employer pays your bills the state of mississippi it's monday standing so she's an employee why doesn't act it falls under step to the analysis is he acting in the west doesn't control the substantive liability though it shows a removal statute that that's correct but when it goes to whether he was acting in the course and scope of his federal duties it's step two in the analysis and that's controlled by the law of the state of where the complaint of conduct occurred and here is in mississippi so even if the court concluded that somehow these duties related to the all rank insulation that's training not only active in reserve army but they're also training air force navy and marines so it's the entire support of operations as what colonel gregory michel is in charge of and also this active guard reserve soldier that he is places him in full time national guard duty so basically there's no remedy for her under the circumstances you're suggesting for her allegations or if there were allegations that proved true that they were just stealing liquor right and left from the all ranks club so you think she has no recourse right you have no recourse against c but what does it mean to say that a reading of a statute is crabbed to say that it's fun to say that it's crap is that he's trying to trying to be too specific site day sixteen it where it defines the active guard reserve duties the purpose is to assign these soldiers to full time national guard duty to administer to training and to organize which recruits also fell under that category as well the issues in our beliefs i just have one brief statement i guess to make in regards to that as your honor pointed out the there is a the other duties are defined under that statute and again as there are a number of statutes which apply that might give a national guardsman federal status as the court held the fifth circuit in be us he wanted thirty five of two now this was actually in regards to whether or not congress was excluded if congress and this is what the court says if congress intended to exclude members of congress from the provisions of the federal planes that it could have expressively done so within the language of the et and if our congress intended that the supervision of  facility such as the all rings club was intended to fall under colonel michel's federal status just as the court held in williams that certainly if they want to exclude people they could have steps said here they are not a single word is mentioned of the state employees state facilities state services not to mention of its all department of defense active duty military foreign military and everything else is d a d so if our congress intended to cover the acts of that we