hundred forty one separate plaintiffs most of whom are currently active or retired federal law enforcement agents the district court in this case the heart of the decision the court found that the crucial component of the plaintiff's claims in this case in other words the essence of what cause them harm was that mr macleod who you've learned from the brief committed suicide lied about the bona fide use of the bond fund when he was scheme and because in the district court's view the plaintiffs harm was dependent upon those lies this case necessarily arises out of misrepresentations and therefore section twenty six eighty eight which is commonly referred to as the intentional toward exceptions to lie to jurisdiction applies in other words in in the district court's view because a misrepresentation or a lie was as central cause of the harm it obliterates all other negligence in the case but the supreme rises on a misrepresentation and water rises out of me you're exactly correct you are the supreme court in united states versus sheridan teaches us that the district court is wrong the court began its discussion in that case discussing its prior decision in a case called mune its and also judge harlin later chief justice harlan's reasoning in a case called canal out of the second circuit both of those cases involved assaults and batteries on inmates in the custody of the bureau of prisons and in both cases notwithstanding the fact that the assaults clearly gave rise to the harm in the case the court said that the proceedings could go forward the drunken off duty sailor in the hospital they had a duty separate and independent of the employment status of the drunken sailor that duty arose from nabi regulations that said you can't be drunk that were the law is the lies were illegal solicitations in this case the government yes the when the cloud stood up in a g s a controlled for still and pitched his bogus find that was illegal behavior it's illegal under the g s a anti solicitation regulations and the government had a duty to prevent that solicitation and the question thing is does it rise out of a misrepresentation and the answer is no if there are the fifth circuit encapsulates the holding in sheraton quite nicely and if you if i may quote is a shared stands for the principle that the negligence claims related to a government employees twenty six eighty eight intentional tort may proceed where the negligence arises out of an independent antecedent duty unrelated to the employment relationship between the tortfeasor and the united states you're exactly correct judge carnes whether or not this arises out of and if you just obligation to communicate information under little was that the layer arose only in connection with the employment status of the person responsible for commit communicating that language in other words the as ceased the allegations lay it was that the f c c had to communicate that up to an a another entity because they had knowledge but that statutory duty kicks in only because they were f c c employees and that the purpose of the d n a is that it is a function no they have a statutory duty to provide educational services that that we've outlined through the t s p act in other statutes but they weren't government employees who breached any clear statutory duty yes and still the misrepresentation arising out of misrepresentation exception was what the court held that the person who made the misrepresentation was mcleod let's assume he was a government employee well i can't tell from your pleadings you've gone back and forth first one said he wasn't silence and he was and thank you trying to take that employee but that the the government yes schreiber stuck with that right fine i'm stuck with it but the naval corpsman in sheridan was also a government employee actually undershirt it doesn't matter what the person who did the intentional torte w a government employee or not if the people that you're suing for negligence were government employees and the answer is no and yes if you look at governor if you look at justice harlan's reasoning no seriously employee keep most definitely wasn't acting in the scope of his employment if he was committing illegal acts soliciting folks but we're not even focused on that we're looking at the negligence of other people had an independent duty to prevent the intentional tort shared it was based on the negligence of the two corpsman that found the drug either not it wasn't based on the negligence of the of the drunk corpsman who committed the intentional act and so we're looking at the negligence of the other employees forget about macleod it doesn't matter whether he's it doesn't matter whether he is an employee a guy that walked in off the street or some independent contractor that they hired that's the whole point shared in just about any funding scheme out there and they don't have a climate  would characterize it or you could you are but that's that's not what we're pursuing that's our claim in this case here you've got independent duties arising from the g s a regulations the anti slip station regulations the o p m policy that said you're not allowed to solicit business during these seminars you're not allowed to endorse employees there's a lot of things that take this away from your typical ponzi case i see i'm over my time i do want to reserve now four of the drunk in court of the drunken soldier but there was a separate negligence on the part of the people at the hospital and for failure to enforce the regulations not to bring guns  campus or firearms or gas and also to ensure that a drunken soldier with a firearm didn't go out of the hospital and here it seems like the intentional act of course negligence on the part of the agency employees for example who have voluntarily taken on the duty of deciding to financially educate their employees and in negligently and failing to comply with their own regulations by failing to ensure that this person did not speak about or endorse products and that the employees who were setting this up did not have conflicts of interest and particularly as shown by the fact that there was a high ranking official in da who brought these problems to the attention of d e i that there was  independent basis for the injuries that the dea agents suffered so i guess my question for you is why is it not like sure and well there are two differences between sheridan in this case and i that would be dispositive the first is that in sheridan there was no argument that the government's failure itself was within the intentional torts exception here the plaintiff's basic theory is that they believed macleod when he lied to them because they thought that the government had implicitly vouched for macleod well by bringing him in i'm sorry to interrupt but but that's a different that's a different issue right there i'm not talking about what they believed about mr macleod i'm talking about their failure to ensure to follow their own regulations to ensure that he didn't try to solicit for products while they were there and heard him solicit for products and arrange for meetings between agents and mr macleod on government property knowing that he was selling them plaintiffs characterization of their own claims does not control when the court determines whether or not a claim arises out of misrepresentation so while it's true that we look at the plaintiff's allegations we also have to ask ourselves what the substance of their claim really ye that if macleod had just walked in off the street uninvited that the result would have been the same that's not their theory this is all bound up in the fact that because macleod appeared during seminars at the government's invitation was presented as someone who could count a great case i think that's exactly why this happened that because the government brought him in and did not comply with its own regulations had to comply with its own regulations it would not be allowed him to speak because he was violating the he was violating the rule of soliciting people to buy his products and services and because the people who brought him in had conflicts of interest so irrespective of what it was that he told in their injuries were they were shot by this drunken soldier i mean that's what actually injured them while mr macleod's misrepresentations or what actually injured it is in this case was not a government employee and all came in and said aha only government employees subject to government f t c so then they amended that the complaint that we were wrong and the district court ruled on to say that he was a government lawyer and was a government employee acting in the course of his business and the district court said ok fine and he was and it arises out of his m court what they're now saying on appeal it would still be within the intentional torts exception because the government negligence that is alleged here is a form of misrepresentation that their argument is that you can totally set aside mcleod's misrepresentations and then they have a claim but that's not right because the thing that caused their injury was their belief that the government had vouched for macleod their argument is that they relied on the government to bring in people who were trustworthy and that when they saw mcleod they're in a seminar promoting his products they believe that he did so with the government's approval and that as this court has explained in the law if the basic argument is that the government should have prevented someone else's misrepresentation or facilitated a misrepresentation that itself is within the misrepresentation exception as the supreme court explained in new stat the non communication of information that someone might be expected to rely on in the course of making an economic decision that is also a misrepresentation so even if we were to say that we have both breach by the cloud and a breach separately by government employees the point would be that that breach by government employees also sounds in misrepresentation because their theory is not that macleod could have just wandered off the street and stop someone in the hallway and they would have decided to invest with him this is all wrapped up in the aura of credibility as this court put it and botha that his connection to the government and the government's silence in the face of his promotion of his services conferred on him and it is that misrepresentation that gives rise to their injury let me go back to something you i think and maybe we just have a different understanding of what shared instead of my understanding of sheridan is it makes no difference whatsoever if the intentional tortfeasor was a government employee at the time was acting within the scope of his duties as a government employee was not a government employee that doesn't matter because we're not looking at that person's behavior we're looking at the behavior of the people who are being sued for negligence right and and i think that's what the supreme court said when it's sad indeed in a case in which the employment status of the assailant has nothing to do with the basis for imposing liability on the government it would seem perverse to exonerate the government because of the happenstance the car was on a federal camera let me just first ask you are we in agreement that the status of that intentional tortfeasor as a government employee not a government employee acting within the scope of duty or whatever but that doesn't matter to me analysis that's my first question and if not one of my missing so a couple of points your honor i mean first of all and this is not the basis on which you got don't need to agree with me on this  order to affirm but the point here is that macleod's relationship to the government is very much bound up in the reason why the plaintiffs were injured it was because of a cloud ongoing relationship with the government that they trusted him and it was because they trusted him that they chose to meet privately with him and my question about whether it matters or not to the sheraton analysis whether the employees or whether the intentional tortfeasor is a government employee acting within the scope of his duties as a government employee or is not a government employee does it make any difference whatsoever because it would just looking at the negligent toward feasters so if i understand your honor's question it may matter sheridan the court said that there was an independent duty that government employees had failed to fill that had no and that the failure produced an injury that had no relationship to the shooter's  employment status the shooter could have gotten to the same place could have gotten drunk could have stood on a public street with a gun and could have fired into a car without having had any prior relationship with the government and that's just not true here i mean nobody thinks that macleod could have stood up in a government retirement benefits seminar and presented to a group of employees if he had not been asked by the government to be there but it's a separate point to say that in sherrod and there was no argument that the government's failure so they are the government's failure to prevent a drunk man with a gun from leaving the hospital property was itself with and the intentional torts exception and here it is here the argument is that because setting understand how you can say that it sounds in misrepresentation i know there's a way to do that and i also understand that we have to look at what the actual claim and artful pleading is not a way around this problem but it seems to me that there is also a separate duty going on here because the government voluntarily took on the duty to financially educate its own agents and had the government not taken on nat duty none of this would have happened doing that it inapt in certain regulations to ensure that it was done properly those regulations which were violated here according to the allegations had nothing to do with misrepresentation have nothing to do it those those duties are things like ensuring that no conflict of interest exists between the person who's doing the hiring of the speaker and the speaker and things like ensuring that the speaker does not talk about selling his own services or products irrespective of what he says about them those are not misrepresentation kinds of claims those are separate duties independent duties that have nothing to do with what was misrepresented or any kind of misrepresentation and so to me it seems like a separate duties that the corpsmen had in sheridan comply with the regulations to ensure that firearms were not brought into the hospital and that drunken soldiers who had firearms were not allowed to run around outside the hospital grounds that that's what i'm trying to say and that's what i don't understand why you think this involves a misrepresentation when we're then they failure to prevent a misrepresentation itself sounds a misrepresentation and thus arises out of misrepresentation and so even if you were to conceive of this duty as entirely independent of whether or not macleod is an employee and of course each occurrence as you've observed that's what they've alleged the independent claim would arise out of misrepresentation and would be barred by the intention towards exception i see my time has expired i'm happy to answer any further questions here the failure to comply with the regulations the g s a anti saloon station regulations and the o p m guidelines meant that the lie was permitted so lay did not involve facts like that were not that the the regulatory failure just referenced is not founded or related to misrepresentation we're not saying that the government agents that were alleging were negligent not nickel out were negligent in failing to communicate information or failing or saying something inappropriate were saying that a crime was committed in front of them and they didn't stop it and the solicitor but for those solicitations but what was the crime that committed before that the solicitation drawn of the regulation to make them a criminal respectfully disagree because the to stop a criminal solicitation does not require the government to communicate information at all it just requires them to stop the speaker from making an illegal communication yeah the injuries and and sheridan arose from the bullet that entered the car but that doesn't mean that it or rather that the court said that that the injury didn't arise from that because it was a preexisting duty to stop the shooting where you were you ar basically take you anywhere well we're not focused on the court was not focused on the drunken sailor in sheridan nor nor we focused here on the employment relationship of macleod to the government let me let me make assume that what my colleague said is correct and that the my client's trusted in the cloud because the government brought him in which is true that's not what caused them harm they could have trusted him all day long but but for the occur they had a duty within the scope of their employment to prevent that they had you had agents witnessing the cloud sell his his bond fund at retirement summoners they had an independent duty to stop that that's the case we're saying who was negligent where the other employees who were there who saw the criminal solicitations and failed to prevent them that's who we're focused on if you want to say that counts one and two because i added them to say i could try to  to investigate and put out of business ponzi schemes there was a let me ask you this could it have been a discretionary function problem instead i mean it seems to me like i think that celera came to the right answer incorrect in that it placed emphasis on a broad reading of section twenty six eighty eight which was rejected by the supreme court and cher and and i've cited numerous cases that say that of the seventh circuit