that the exception was the discretionary function exception and author of both the independent contractor and discretionary function exceptions were were involved i believe your honor is that the common thread running through our three cases is the allocation of the burden of proof under the case under this course case one thousand nine hundred two case of prescott versus united states and i'm certain that counsel for wizz nanon offeree will argue  the post office and read watch were specifically set out in her written contract not only the goals of her duties as a cleaning person but also the specific way she was to clean and we detail all this center in our brief i'm not going to repeat everything but even to the point of how she was to use a wet mop and how she was to do the cleaning and how she was supposed to walk it in terms of liability insurance i'm you know her contract is in evidence it's not clear to me as to whether or not her contract required her to have insurance i don't believe she had i know she had no insurance in fact she had no insurance and in fact she testified in her deposition which is part of the record that in fact she's tiva leave that if she was injured on the job which is not part of this case but she said that if she was  ured on the job she believed that she would be covered by the workers compensation insurance by the government so she thought and that's when she was an employee also if she renewed her arrangement with the  every two weeks in fact she submitted hours and she was paid based on the number of hours times a certain hourly rate so she was paid on an hourly rate furthermore as the record shows all of her tools of her job all of her materials that she used in her job all of these were supplied by the government she did not bring in any equipment cleaning supplies anything at all it was all totally supplied by the by the government also all of her work was done during the regular business hours of the post office when a people were there to supervise her wasn't done in any type of after hours performance  we believe that under the prescott standard at a minimum even that we think the evidence was overwhelming that she was in fact an employee at a minimum there was certainly at his feet of material fact and if the court had like the summary judgment where it does become the summary judgment standard where you have to give the benefit of the doubt to the to the client and there it seems to me in this case would be whether the floor was black and whether your client correct and that is that would be separate that i think with the court in prescott to say now in prescott it was dealing with the discretionary function exception not the not the independent contractor exception but prescott talked in terms of any exception to about the standard where the court doesn't have to do this giving the benefit of the doubt or cases where it's completely different it was one case where there was a question of statute of limitations which involved something totally outside of the merits of the case miss case we do believe intertwined with the merits that the gist of course replied the standard for summary judgment play of or conveniently fails to articulate exactly how these issues are inextricably intertwined the jurisdictional issue and the substantial claims as judge fletcher pointed out are not intertwined in this case and the certainly not so intertwined the resolution of the jurisdictional question is dependent upon a factual issue going to the merits of the contrary here the two issues are separate negligence claim or whether the floor was wet and whether there was a warning sign that was visible to the plaintiff when she walked into the red lodge post office the entire notion that i think plants are trying to advance here is that whenever you have an independent contractor exception to the federal tort claims act at issue you've got intermingled question of jurisdiction and merits and i think in order to disprove that assertion all you have to do is look for a case where  think where your problem is is with the facts here ok well if i could your honor like first and foremost to address something that the plaintiffs counsel stated that was incorrect in fact  work as a contractor studying for three other businesses in a very large area and that is noted in my brief on page seven and in the excerpts of record at page sixty four my question was did she have she have another who was giving her that he made this job no she was not a subcontractor if i if i get your question correctly she was only a contractor to the united states that's correct your position that she was her own boss that's correct she she in the contract documents your honor that she signed when she got this position she indicated that she was a privately owned independently owned business and that if she was going to retain anybody  to work in again in the capacity of fulfilling this contract she would have to pay them according to federal minimum wage standards and so on and so forth she could still contract her position if she couldn't make it late because she had to go to a funeral for example her son would show up to do the her or her husband would show up to do the job for her and it's categorically anathema to you know the standard position of employee and there are plenty of other facts in the record that indicate that this was the case what's interesting is that employee so in essence you've got to have two things you've got to have both the authority to control that contractor and then you've got to have the actual exercise of control over the details physical performance of that contractors day to day activities that there wasn't not only the authority to control but he actually well i think i would refer you or your honor to my brief and the specific provisions in there including the declaration from the postmaster grand indicating that he was he was the contracting contract reporting officer if he saw a problem with ms hill's performs he would report it to a superior he had no authority to modify her compensation or to terminate her more to the point in regards to what ms hill did there on a day to day basis sure there was a chart on the wall but the chart merely said you should clean the venetian blinds every three weeks ok it didn't say you know when she had to clean those winds or you know but she had to do it  such and and in this regard i think it's important to point out also that that if the contract was specific in the manner in which it directed ms hill to perform activities that's an indication that there was no master servant relationship here if there was a master servant relationship then why wouldn't the post office in the postmaster following this still around and every job that she did just say do it x y z this way that's the typical here mark of a master servant relationship i'd like to pose a question  or what are your views of the law in our president we have cases that have elaborated on where one draws the line between exercising the kind of sure that there's a you know a case where that where there's a bright line determination that's made the cases that speak to the issue or the cases that i've analyzed in my brief and i think they give you examples of what is and what is not you know there's instances where  for example a ballerina is considered and employee and not an independent contractor various reasons but the earmarks are the things that we're talking about here and the things that have been raised the first and foremost important issue is the extent to effectively there ceases to be an independent contractor here that certainly not the kids musial was free to come and go as she saw fit as long as she performed her duties there was no set time that she had to be at the office or leave the office that's just one factor exactly yes and again all of these agency factors are subsidiary to the primary and most important inquiry which is the extent to which the contractors day to day activities were dictated and controlled by the post office i set forth an expansive discussion of all these factors in my brief and and again none of them are are disputed on a factual basis so the entire argument that there was an incorrect standard of review applied in this case is  factual basis for plaintiff assertion for subject matter jurisdiction the district court is not required to interpret disputed facts in favor of plaintiff at all the district court is required to determine whether or not it has jurisdiction more time with a few more seconds and give you too many thank you your honor i just wanted to make a few points and then according to a question and a question probably glad to answer them as far as whether she had any other jobs at the time she did not have any other jobs the transcript of are deficient talked about she had three other jobs previously previously she had worked cleaning of different banks in the town and she talked about that she had she did clean three of the different banks in town and i cleaned them that night and then when she went to work here her hours were seven thirty am to four thirty pm every day she worked during the day she was told actually even asked if she could work at night i'm just told she could not because she would have any access to the cleaning supplies that the government did that provide her as i've indicated initially air our main argument is that there was we believe overwhelming evidence that she in fact was an employee the second argument we're making of course is a fact we do believe under the prescott standard we do believe the standard is that these issues are intertwined i know that's something that the court may have some questions about  we do believe this is an interesting line issue where the court does have to consider the facts in the light most favorable to the of tolerance at least the district court did should have and that if you do that there's no way that summary judgment