workers who caused the fire were federal employees under the corporate funds and disclosure act consul for purposes of determining employment with the u s forest service is it appropriate for us to look at the traditional benefits coverage of the respective governmental programs for employees such as health insurance eligibility for federal retirement benefits or for other benefits traditional employees of the forest service might have i think not because of those kind of tests you  how about your argument it would utterly fail and that type of that test it would your honor and the test would be incorrect because congress says test is incorrect all right but the t a is two fold and two fold only and that is did the workers work under the supervision of the forest service number one and number two was th work under supervision of the forest service mutually agreed to and so you have the statutory language which is plain and clear and uses the word deemed that the workers are deemed to not be federal employees except for purposes of the f t c a if they meet those two conditions all right and so there's not only the pla language of the statute but there's the plain language of congressional purpose which is found in the record in both the house report in the senate report found at a volume five page ten  cooperators and their employees in emergencies or otherwise as mutually agreed to and in such cases said cooperators and their employees would be covered under federal tort liability and work interest laws but would not be considered federal employees for other purposes you just can't get any more clear than that and that is the congressional purpose of the statute so we get to the conditions the two conditions that i mentioned the st being worked under the supervisor supervision of the forest service which is a fact issue did or did not the workers work under the forest service supervision the word supervise has a common sense and dictionary definition of to oversee direct or manage work and both sides agree that the supreme court system logue l o g u e it's the applicable one and that test is the critical factor this is the supreme court talk and not me is the authority of the principal to control the detail performance of the contractor in the case of put it a little bit of a different way but it's the same thing and that other way is whether the government has control only of the end result or the manner and method of reaching the result so if you look at the district court findings factual find if district court factual findings do not square with the district court's conclusion of no supervision if you look at the district court factual findings they compel i believe the answer that these workers worked under the supervision of the forest service well it depends largely on what supervision means right for instance the crew members who are in charge of tending the forests and so on don't even they say to the very seldom saw mister johnson even out there so there's this broad supervision here is the unit for and we want you to work on you know for and do x y z but they're not there mister johnson's not on the grounds supervising each tree is that scott and so forth right right but if you take a look at this kind of work you have workers out in the forest cutting trees there's no need and no opportunity and no reason for somebody to be standing over workers saying cut this tree don't cut that tree but that is essential to what the forest service did because mister johnson admitted to being out there fifty or more times there are documents that he wrote instructing the forest workers what to do when a foreman wasn't there he instructed the workers what to do you may have a worker saying that he was not there that often but you have other workers saying that he came out frequently and put it all together if you if you look at all of it together and i'm talking about the factual findings of the district court the governing documents and the verbal instructions say that the partner that's the point below will cut these trees in this fashion will not cut those trees will cut these other trees high slash the drum hit rocks caused a spark lit the high slash on fire and when the masticator operator saw the fire he was unable to get to supervision test seems to me has little if any relationship to the cause of the fire here which was basically hitting a rock and eating a spark and starting a fire i mean it  just seems to me that you're trying to somehow say that is due to improper supervision but i don't see the connection i don't see that it's a two staged test were they federal employees that's where the supervision come from them and if they were federal employees then if they caused the fire doesn't matter if the supervisor caused the fire or not they're  the c f d a says we're going to deem the cooperators a federal employee for tort claim liability and then but the agreement between the parties or the cooperator and the forest service says that they're not going to be federal employees does the c f b a prohibit the parties from a green that they that the cooperate or won't be a federal employee i think an act of congress prevails over a felt protective clause in the contract one hundred percent of the time you can't have that you can have a party a private a forest service of the an act of congress by putting a boilerplate provision in the contract otherwise you have it all of the time everywhere it would be extra record but you probably do have it all the time everywhere guaranteed that your honor i would guarantee that  to cooperate or to be federal employees every single time and just needs an open or the parties to decide they're going to be federal employees not in an instance and that would explain why the statute or why the contract goes one way or the other here it's not well you know that you end up in a circle with that kind of a perspective on your honor because you have an act of congress that says if these two conditions are met then there is federal employment status and if the contract says well they are not federal employees that contract is obviating an act of congress it all depends on what that act of congress and you're reading it saying to you shall be deemed essential employees every time and i'm proposing a different reading which is it's  it's possible for them to be federal employees for purposes of the tort claims act but it doesn't have to be alive when you all sort it out agree but it's not between you all because our clients suffer the discretion d the side that destruction of their private property as a result of the negligence causing this fire ok they're not party to the contract but they're protected under the federal tort claim act and circumstances under which they're protected and the purpose of this statute was to protect the public from cooperator negligence if the basic conditions were met and i think at this point in the three minutes are reserved for rebuttal reserved it please the court joshua du santos on behalf of the united states riders i'd like to concentrate on the c f d issue that the court was just discussing as judge phillips you noted the the statutory provision on eighty two dollars states that cooperators may work under the supervision of the forest service and when they do so there's a general prohibition on cooperate as being considered employees except us to two statute for determining whether someone is an employee or an independent contractor and that waivers of sovereign immunity have to be expressed in unequivocal so if there are more than if there is more than correct the court noted that under each of those factors the tribe should not be considered an employee of the united states at this point i'd like to take any questions that the court may have all right so do you know of another case where there's been an admitted i mean it seems like there is no dispute that there was a negligent hat your gr we haven't reached the negligence i'm sure case i'm not going to concede buck assume assume it's assume it was negligent you know of another case where the people affected by the negligence are left without any remedy whatsoever because the cooperator has sovereign immunity and the united states government has and you know has no liability under your honor there are many many cases in which injured persons are left without any remedy because the government a sovereign immunity under the federal claims act given that there's discretion function or it was an independent contractor that caused it  here you're right that there's a contractor that may have been negligent and normally a person could sue the contractor and here the contractor may not have waived its sovereign immunity because it is itself a sovereign but that does not distinguish this case from the many cases in which internet persons cannot recover against the united states under the federal tort claims act just it just makes me wonder if the part of the statute talking about cooperators being federal employees if they're working under the supervision of the forest service wasn't put in there for this type of reason because cooperators are frequently governmental entities or  indian tribes well look cooperate as and maybe indian tribes and other sovereigns but the provision that your honor is referring to is not saying that the cooperators always going to be an employee of the united states so i  get that that's your position but i'm i'm just wondering if that's not the intent of that provision has to do is to sweep these the saw her hands into the scope of the stats and to where they'll be considered federal employees i don't believe so your honor already on that i don't have any cases on that but i think if one looks at the text the intent here is to create a general prohibition on consideration of corporators as employees the language says they shall not be considered employees for any purpose and then just lays out a few exceptions one of which is the federal employee comes ations i can the other which is the federal tort claims act and leave those open so it with two exceptions so it doesn't seem to me like this is the type of provision that is expressly trying to deem entities to be employees because those entities might be sovereigns the congress has and several other statutes expressly deemed indian tribes workers for example to be federal employees you can see that in the indian self determination act and the language there is very clear it says that a contractor isn't cuddled to qualified immunity and at the same time say that the contractor is neither subject to supervision or considered an employee basically creates a zero protection which is it seems to me an entirely inappropriate in so far as the general public is concerned it's almost an invitation to commit negligent acts without any liability whatsoever it sounds like the perfect crimes  why why don't we have the situation here well your honor it is a long standing principle that sovereign's me only to be held liable when they choose to be the fact that the tribe here has not chosen to be liable if in fact it has not chosen to be an independent contractor so if they committed negligence to the extent the plaintiffs can bring them to court they may the tribe may be immune based on its own sovereign immunity because it is another sovereign but that it has no bearing on for unless this court has any other questions i will jerry not read thank you for thank you very much in the rest of your time we appreciate it thank you council got so you did have some  i'd like to do is focus on the clear language of the statute somehow this case has gone off into a variety of l a said in my view are dead ends if you if we stick to the plain language of the statute and the plainly stated purpose of congress then it becomes a factual question about whether the two conditions for federal employees status are met it's not that the statute requires all cooperator employees to be federal employees it's that the statute requires cooperative employees who work under the supervision of the forest service as mutually agreed to are federal employees and in this particular case you could not find a greater level of control of the performance of the details of the work then you have in this case well i don't but if the crew members are late to work by abuse and resolve and the employer and sort decided no more of you who was a made to call the fire on this at the federal government the forest service or as it operates i think it i think it initially would be the weblo but it could also be the forest service have that the question is not who is responsible for taking an employee off to work it the question is whether the employees work under the supervision of the forest service and if the forest service as the lo test requires control for the detail performance of the work that is the end of the story if you can't pick out one little part of the employment relationship and say oh they're not employe because the problem deals with them if they don't show up for work the question is very simply stated in the statute and they had as work under the supervision and they worked under the supervision with the  forest service because they did it for years without objection and they did what they were told day and day out month in month out year in year out up i'm out there questions real