on authorized a private corporation violated federal law and immunize the private car corporation from the consequences of violating the federal law which was passed by thousands of congress and signed by the president is not only completely inconsistent with over two hundred years of supreme court precedent but it also is totally incompatible with the separation of powers mandated by the united states constitution your honour's as far back as two hundred years ago in the case of little vers s the supreme court ruled that even the president of the united states cannot authorize a person to violate federal law in the recently decided case your honor judge floyd wrote that the fact that the president let alone a is for a federal administrative agency contracting officer to direct a private contractor that is working for the government to violate federal law separation of powers mandates that an executive officer especially contracting officer your  so they're putting that in here but we were never permitted to do any discovery on whatever proof they claim they have that up that my client or anybody else consented to that issue is really not before you our position is though that even that check don't finally if someone civil rights that doesn't mean that there are a lot of other civil rights the basic fault chris position is that all private contractors are required to abide by federal law in any contract and in fact your honour's the federal acquisition regulation specifically requires that in forbids contracting officers from making a private contract agency ever step into the shoes of the gun up your honor it does if you're talking about it was not here that is not here your honor because of the time that it steps in the shoes of the government is when they're directed in violation of state law not federal and  that it's not because the supremacy clause is about a statute or regulation that's issued by the federal government because if you stay or state action this would be an action of a contract officer an agency without any without any statute or regulation behind but well again your honor in re k b r was a case where the where the where the plaintiffs were talking about violations of state law not federal and i'm sorry and i don't believe that that was the i don't believe that was the defendant which which plaintiff is claiming the fat where the defendant violated federal the the state law here there is no such direction they told them to make the call they told them to do it in order to dial or they never said don't if there's a carve out protection that this doesn't apply to the federal government of in a statute and a federal employee carries out action that would otherwise be illegal you know liable in work we don't have any hard right here for the federal government  all we have the only argument they're making they're not making an argument about any karkala they're making an argument that they're sovereign immunity whenever they're sovereign immunity you can still sue the individual officer under the federal tort claims act which says that an individual of her shall be liable for disco about a diet that these calls were about were about signing up for health insurance plans run by private by private health insurer that would be the answer would be yes your honor these are called about insurance the moving beyond the years the argument the contract itself specifically requires of the defendant to via two to follow federal law i mean it says in there that they must they must contracting officers by saying no contracts will be entered into unless the contracting officer ensures that all requirements of law executive orders regulations and all the will procedures have been met so obviously that the the contracting officer contractor do with the government instruct it was an authorized or did it act outside its authorization the first prong was a constitutional there really was no serious argument made below that this was unconstitutional conduct to make a phone call or judge yes exactly and that there was nothing to draw into question that they voted to the to the team to exactly what was required that the factual findings that were in the initial order before the additional discovery was granted were supplemented by the memorandum opinion so if you look at what actual findings are we would say look at the order as supplemented by the memorandum indian those factual fire find consent but the court and he says the court had to accept that as true but there was discovery and he did not present facts at least not successfully if these arguments about consent are therefore really sort of just a red of sovereign immunity for a contractor who violates an act of congress nonetheless the supreme court has applied years lee to it the c p a claim the exact statute at issue here and there would have been no point in that analysis but just stepping back whether there was a violation of federal law is not a question that this or the trial court should address the question is it really does put the cart before the horse as the whole point of immunity is you don't get to the merits as to whether there was an underlying violation only need to satisfy the two test and that makes complete sense that usually wouldn't really never apply if you're going to go to the merits and determine whether that was a state or a federal violation then and therefore be to under his test be deprived of peers the immunity the doctrine would go out of existence and the only thing is tell me how it is that you just tell me straight forward how it is that  your client could make the call as they did they were told they were given a list of phone numbers on december one thousand and fifteen of six hundred  absolutely the t c p ip does not does not bind federal we disagree fear that's what i was asking that we absolutely disagree because it restricts what a person can do over the us code and lee requires if the federal government can do the act and they clearly can and there's evidence that in fact consent was tainted even though the government didn't have to i want to go but that sit just a little bit ok but so if the federal government have the private contrary contract or ask act unconstitutional they can't authorize they can't go beyond their constitutional powers but then they can often go beyond they go beyond the constitutional power or you think something less than  the point you know government agent cannot in any way stop the whole person telling you what the program is even if they absolutely agree they told you that you'll get coverage in the demo with agent you don't get covered for dental one regard violate some of its constitutional rights not violates a federal statute years they were law but violates constitutional rights you could say well congress couldn't wouldn't authorize that couldn't federal government not bound not required to get and sent and the contractor doing exactly as told is an adult that drip it's obvious you're in any claim in this case that there was an itch rash provision in the contract yes it's a at least a variant it may be exactly that but i read it as a slight variant of that which is that they're saying they were not in time usually immunity because the contract didn't say don't get sent this is a who you could drive a truck told as they were in this case to make all that certain time i'm sure he could argue that nobody said you know what time to make the call that act is not authorized that's not and that's what you're seeking immunity but this redefining the ad to include things that were done know he said when mr cunningham began his application he certified that he read and agreed to these privacy policies privacy policy is to say that they can collect information and use the mobile phone number to to provide one with information and that you've provided his mobile phone number and then when they then there was additional discovery in the courts i'm not going to repeat what i said before but there are some additional factual arguments that that we're looking at so yes i think that the court did find that but you don't need to reach that issue he also makes the argument that with respect to this federal law point i just wanted to come back to one additional point which is if if one were to say well you have to go into an analysis as to whether federal law was violated in order to determine whether to light years late that would in fact be applying of adding a third prong here's the it's not part of the analysis and it's never been part of the analysis the only legal question it's a constitution says boyle is an apis it will claim of yours lee immunity and there's also no reason to really conflate the two they deal with with different different conduct and then lee i just want to touch on this jurisdictional point  case because when years lee applies as k b r says the contractor is not subject to see and hear it so that's why it's incorrect it's so irrelevant because there's no difference in the standard in considering twenty one motion where there's discovery and motion for summary judgment that were sort of it said that before here there was seventy five days of discovery granted that was a full and fair opportunity and the court sa and found that the evidence here would support summary judgment as well so although we believe this circuit is absolutely correct there are some other circuits have have as judge as judge or grady noted there are some other circuits have said no it's not  that the that the that the government that the the the government specifically authorized the acts made by the defendant that are being sued upon you just admitted that they never got if they didn't get that in years and he simply does not apply r the fact that a that it contractors working under the general theme or umbrella of a contract to do work doesn't mean that it protects the contractors from that specific act that they did if they were not directed by the federal government to do it and they never were here and they admit it if they weren't if they weren't directed to do it that way then the then the failsafe fallback position is that federal law applies otherwise what they're saying is unless the contracting officer that analysis well they're not they're not actually your honor let me give another hypothetical the government the government wants to get it wants to do some collections and the government hires a private collections for to do collections and they've done that there are cases like  a case that involved a private contractor hired by the federal government to make to make elections they took the federal government says we want you to call every person owes us money no less than fifty times a day even if they tell you that that they're not supposed to call that violates the f t c p s a it's clear under their logic because the federal government said hold them think they should need to call fifty times a day then the collect private contractors not liable that doesn't make any sense now the hypothetical that's more closely related you would be the federal government says we want you to call these hundred people in the next week and we want you to collect those funds from them that's all the federal government's and then the contractor goes forward and says you know what the theory because the government never said you have to follow the f t c yet you have to file that stature under their theory that that contractor would be immune that can't be what the law is federal individual federal employees under hundred eighty three are not even given the type of the muti the eleventh circuit in the man case said that it can't be the law right that a federal that a federal prison guard would have qualified immunity but that a contractor's prison guard would have complete immunity that makes no sense how could you have a federal government the federal tort claims act says you can sue the individual federal officer for violating a federal statute how could it be that you could sue a federal government officer violated federal federal is that the answer is it the answer is no your honor only because of there is no this is this is interesting you should know the terminations there bring in merrick's things that you can argue about whether if they're saying it's not true if they're saying this is that you're allowed to decide on everything if you jurisdictional case you can't talk about the been appropriate here we had no chance to do any discovery on that issue thank you