council let me ask you to come stand at the microphones of that we can he case of west versus rees it's a case that where plaintiff is attempted to hold defendants accountable for the abuses for personal gain procedures military procedures  district court which upheld the certifications was incorrect based upon the a finding that the factual issues were raised and were found that were not sufficiently that the evidence  documents which the important point that the government has not objected to they have contested in any way my plan was to read off some of the facts but i imagine that the trust   addressed or on the scope of employment issue was a megan that's pretty much what we thought we were we were litigating at the outset now the court cited the case of oz born versus haley  which which is a supreme court case that indicates that if the certification in other words the plaintiff challenges the certification if the government's answer to that challenge is to say well the underlying facts didn't happen on the then the supreme court said well the district court has to address the underlying merits of the factual allegations and it's our contention that that based upon that ruling the the supreme court required that the the defendant or the government specifically raise the factual issues and if so based upon the fact that you're centrally depriving the plaintiff a jury trial is of that that they be given a fair opportunity to address those facts to concerns and know that happened in this case with the regard to question your honor that the scope of appointment the district court did say as a legal matter that that it that u geisha of sexual assault was not automatically it was not legally scope of employment just by virtue of a certification and that the plaintiff could establish that the allegation of sexual assault could have been made for sol personal reasons but the court didn't address the facts of that matter they just just discussed that as a legal matter i would submit to the court that the facts in addition to the legal matter also indicate that as a fact matters beyond the scope employment but i you know did mention in brief and i can tell you that i'm less than namor with um with the scope of employment issues that i was before because i understand  at there is a desire to increase the reporting that being said in this particular case when you look at these particular facts these individual defendant accusing the senate's head of had a clear personal motive and i think you can you can no glean from the facts of this case they were only thinking of themselves when they made these allegations that the marine corps as the other branches have been working hard to strike at problems of sexual conduct in the the marine corps and they have obligations them selves to report and to do these things and the assertion is that what he would be you would be relying upon to show your you go shift prosecution case are doing i would say so yes your honor i mean i think the only issue that we would have with regards to the westfall x certification is that an incumbent upon the military to do to create a process for  dealing with into sexual assault there needs to be a countervailing call it a check to make sure that we're also prohibiting or preventing blatantly false allegations of sexual assault and abuse of that guilty of the sexual offenses but he was three for some punishment he was found guilty of sexual of one not not if there were actually there were no sexual assault or sexual harassment charges brought they brought under the facts they of the the accusers with her text messages and then of course they got a whole that was so that when you know that went the way of you know being convicted as to that charge so i mean you know based on again the scope of employment wasn't really addressed in this particular case in this context because of the fact that new under the in the oswald case it was dealt with under all on the merits and i would say that your honor said you know i certainly understand that we are asking the court to to take an unprecedented dive into what i would say seem to be deep into the military  but i would also suggest that the home what's your best authority for us taking an unprecedented dive into the military by best authority your honor is i can only say that every case has a start i would say that with respect to the claim which i think is the meat of this case here i'd like to start off with what this case is not this is not a suit against the command for bringing these court martial charges and it's not a suit against the civilian leadership for creating this this system in which these false sexual assaults you know are prevalent this is a case specifically targeted to you know circumstances of this particular dealing with a criminal justice matter that happens to occur within the military i'd like to start with you again the faeries doctrine which is the basis you know  that test doesn't really work here doesn't really apply here because in that case you dealt with a specific injury that happened in a specific place when you deal with an allegation of your false allegation against somebody their duty status really doesn't have anything to do with it in other words if i'm a cheat if i'm a on active duty and i'm accused of sexual assault the same thing's going to happen to me whether i am sitting and working in my office or whether i'm on extended leave in bermuda application the faeries doctrine but again that doesn't in the inquiry because you have all these other problems that you know where the test doesn't work we have to look at something else i would suggest the court again a big factor here is the context is the military justice context when you look at the the structure of the military justice context when it when you have a case it's a two step process you have the prefer a step which is similar to an indictment then you have saw some of the same things that we saw your honor but i would say that you and your as you're familiar with your honor certainly probably ran into the undue command influence issues many times you understand that that  courts look into it what do we look at where the allegation says he wasn't i would i think that that gets into don't charge it waters where we're already clouding a very already clouded area of law but  again i do want to touch upon the the status of the defendants in this case and that is you know they were uniformed they are civilian now that's not dispositive but it's certainly important in this case in that when you read the entire order that their role is strictly oversight and they are not within the military management fees of the the plaintiff or any of the other defendants in this and i'm about to run out of time  good morning made it please the court sunny let up on behalf of the united states of america and on behalf of the seven individually named federal defendants in this matter your honour's this case arises out of the fact that plaintiff luke west was a former service member in the united states marine corps because he was a service member he was subject to the uniform code of military justice mr west counsel argues that the court is being asked not being asked to take a deep dive into military matters everything about mr west complaint i'm asked to the federal defendant specifically  the military justice disciplinary system mr west was convicted of filing an investigation of reports as to his misconduct and he was convicted for maltreatment of a subordinate rachel all n which did include repeated sexually suggestive comments he was also convicted of obstruction of justice for confronting his a direct subordinate through her immediate supervisor with a hundred forty pages of text messages and instructed as to how she should respond to the upcoming court martial he was also convicted of a general article violation of the uniform code of military justice also misconduct so there are three issues before the court today three very narrow issues one is whether the district court erred in denying a planer suburbans claims as to the federal defendant the second is whether the district court erred in using a preponderance of the evidence burden of proof in determining whether the federal defendants or the victims in this case were entitled to westfall act immunity and the third is whether the district court abused its discretion in denying plaintiff's motion for reconsideration we're asking your honour's to a for our district court's ruling in all respects and  never extended a begins remedy in the military context and plaintiff has offered nothing in this context which would support such an extension of the bibbins remedy in this  constitutional violation that's exactly correct here it is what is his allegation his allegation is that his due process rights pursuant to the fifth amendment this would have to pertain to only the counsel conviction in light of the fact that the system acquitted him of all the rest well your honor i would have to defer to him to make his argument but i would say that the government's position is that he has not demonstrated that any of the federal defendants had any authority whatsoever over big that he has sued were actually his subordinates in both the right and position within the finance section and he similarly sued the sexual assault prevention and response employees who are tasked with providing support to those individuals who are reporting sexual assault or sexual harassment claims he has sued them they have absolutely no authority over him in any respect they have no authority over his constitutional rights no authority over his  process rights and no authority over in c i s they have no authority over what charges would be referred and no authority whatsoever as to the general court martial as the u c m j punish a false accusation in other words the military system itself contemplate handling allegations of false accusation absolutely yes you're right he pursued that internally he did not and in fact the you uniform code of military justice covered all of the service members conduct not just plaintiff west it also covered the service women who reported allegations regarding mr west conduct and all and it has always been the government's position that their conduct and everything that mr west alleges should be governed within the uniform code of military justice because this all was specific to their united states marine corps service they obligated to report are they obligated to report are you referring to the sexual harassment or the the the the marine corps does request that individuals report immediately any allegations of sexual assault or sexual harassment but i  will not submit to the court that everyone always does because of the nature of sexual assault and sexual harassment claims but that is what the marine corps does a request of its service members both men and women the district court rejected  mr wes arguments based on the facts all and legal context here moving up moving on to the westfall act in the unity issue the district court similarly did not care and concluding that mr west failed to demonstrate by a preponderance of the evidence that the victims were not entitled to immunity under the westfall at federal employees have absolute immunity from common law torts arising out of acts they undertake in the course of their oficial dut this immunity is not just from liability but it's from suit if mr west argument were to prevail then what would in turn happen is a delay in terms of making a decision as to whether employees whether these federal employees are immune from suit would result in these employees having to individually defend themselves over the course of litigation wow that determination is being made and so when i was born versus haley the supreme court of permits of lee instructs that these decisions as to the immunity have to be addressed very early on and the district court in this case took great care and you argument will argue as warrant effectively establishes and confirms that it's plaintiff's burden to demonstrate in fact and not as alleged by plaintiff in fact that the federal employees were not acting in the course and scope of their employment at the time time of the incidents alleged and here the u s attorney certified the federal victims as well as the sexual assault program employees scope of their employment additionally you're honest the burden of production is on well the burden of proof to demonstrate that they were not acting in  on mr west to show not just through his allegations but that in fact they were not operating in the course in scope and the government has maintained that and reporting allegations of misconduct as to mr west as well as testify regarding mr west alleged misconduct the federal victims were at all time acting in the course and scope of their employment judge africa felt there was some uncertainty and guidance from our court if not from other all of this court sr circuits that have addressed this specific issue on westfall act immunity have indeed indicated that preponderance evidence is the correct standard and judge alfred therefore use the preponderance evidence standard and let me just add that in response to the government's motion to dismiss the federal victims and to substitute the united states mr westcott six opposition pleadings and more than three hundred pages of documents which the court accepted court consideration yet mr westerfield failed to meet his burden of the stand was saying that these individuals the federal defendants in fact were not net motion again after accepting and considering six pleadings and more than three hundred pages the judge reached a decision on the issue and any arguments that could have been made are should have been made earlier and as part of the six prior opposition pleadings your honor the united states marine corps clearly has an obligation to protect against conduct prejudicial to good order and discipline they are responsible for defending the united states at home and abroad it is clearly reasoned that having service members freely report allegations of misconduct even including sexual harassment and assault is within their service members obligations this your honor in at the district court level in response to the government's twelve b one and twelve b six at issue here judge afric received and considered a record that is almost four thousand pages his decisions are exactly right we ask that your honour's would affirm the district court's ruling in dismissing the federal defendants if there are no questions your honour's the federal defendants including the united states as well as the seven individually named individuals who will rest on the breeze thank you can't thank you just have a couple of points that need to be addressed i mean the counsel for the government referenced i thought better than i ever could the amount of evidence that has been put into this case i think she referenced four thousand pages of evidence so i would submit to the court that there is not a lack of evidence with regards to whether or not the allegations were true or false and also submit to the court as to the question of whether or not the allegations were true or false that  value of that evidence i believe with all due respect to the government and to the district court is isn't arguable now that's a different question between the underlying merits of the was when they deal with facts that deal with the merits of the case what is the proper that standard of proof i i have to say looking at the oz board case if it applies it doesn't mention it but if it applies i would i would of the case you know vice looking at the the question of scope of employment and i think your honor is that before you have a situation where the where the district court's going to take up a question of the factual matter away from the jury which clearly has a the planet has a right to before it does that those issues have to be raised and there really has to be a fair opportunity to address those issues and again whether in the context question again factually that has not been addressed by the court and i would imagine that you know that could be a subject for remained or that this court it's our position that this court has enough evidence to actually say even with respect to and and i can see the point of the military's interest in dealing with this issue of sexual assault and people not wanting to come forward you know that but at the same time i mean the government and the military has to take into account to do regarding their purpose they have to take into account potential for abuse and the facts in this case do not indicate facts there are are clearly indicated in indicative of abuse for personal gain and based on the fact that you know it's our position that that cannot be a basis for a scope of a proper scope of  again your honour's and i just want to reiterate you know that that i certainly you know appreciate your time and i search and i understand what we're asking the court to do in the court rightfully takes a good long pause before it jumps in and starts its assault its authority in a case like this and by all means i would encourage the court to take that pause if the court is would would prefer a supplemental brief i will write the supplemental brief on