pretty well and i'm delighted this week to be with my my colleagues for so many years we didn't sit with three active judges on these panels and it's it's it's great when when i case now before he is about the remedy is available to persons in federal custody or sexually assaulted and sexually battered by corrections officers or other federal penalties the issue at the center of this case is whether sexual assault sexual battery satisfied to physical injury requirement of the federal tort claims act twenty eight whatley this is judge newsom can i ask you a question just to kind of get us all pocus results in physical injury is that correct no sexual assault and sexual battery as defined by the underlying state statutes arts physical injuries as a as a matter of law you are so i mean i guess one trick is and you may be halfway to an answer here but i guess i was thinking it's difficult to peddle tort claims that doesn't bind those term sexual assault and sexual battery in the same way that it does sexual contact on the one hand sexual act on the other right that's correct you know there is no so no there is no definition for physical injury courts have interpreted physical injury to be an injury that is more this the pelvis position is that a sexual assault a sexual batteries minimalist in all cases the acts that are numerated sexual contact were were placed there by congress in an effort to further clarify the situations under which the united states will waive its sovereign immunity regardless of whether or not there is a specifically defined state tort act that may or may not directly speak to those acts and the steps toward destruction but that so just so i understand we are i guess you acknowledge in sexual contact land not sexual act land sexual act land being that sub nd category we'll just sexual contact but our position is that though those acts as inflicted upon mr johnson by the federal correction officers rise to the level of a sexual assault and therefore are as you said that sexual contact which is where we are here is per se visible injury or perceived gives rise to physical injury then surely there is a does a sexual act which is more serious likewise would per se it rise to physical injury and now you have a statute that seems to be redundant because it refers to busy collisions rape or sexual act but if sexual contact is the injury sexual the types of acts that are actually defined as sexual contact may not in all d cases or rise to the level of a sexual assault a statutorily defined by the underlying courts that use under certain circumstances such injury such acts would be sexual assault and therefore would be physical injuries so there there is no redundancy necessarily in the statute because and because there are situations where a state statute made not permit sorry i was just asking one of my law clerks a question i'm sorry don't mind me says ari no no words now if i may continue the district court air and granting judgment summary judgment against mr johnson on the basis that he did not whitley if we were to agree with you and your argument that sexual contact sometimes can be physical injury are you then constrained by the fact that we have court rulings that say physical injury has to be more than felt that sexual assaults and sexual batteries are per se physical injuries due to the very nature the heinous nature of the acts themselves that there cannot be a nun de minimus sexual assault or sexual battery question are we those sort of mixing categories here i guess i take your point that there is no such thing as a de minimus sexual assault or battery but the question is whether there is a de minimus such a thing is a de minimus injury and it seems like to me that the assault on the battery is the in the injury is the result the be act so is it i mean could you have and this is so sensitive and so gross i hate to even sort of discuss it i don't want to anyone anybody to think i'm being callous about it but would there be such a thing as a your i would say that that should not be the case i feel that the government should not allow any action that is an affront to a person's dignity to go on unpunished and that is intention when it amended the power act in two thousand and thirteen well so let me just sort of push you on that a little bit i mean it seems to me that when congress amended the statute it brought over by cross reference or adjacent provision defining sexual conduct which is where we all agree sort of this act is so that may seem like a bad choice perhaps congress should have incorporated both subsection so that the statute captures both sexual acts more serious sexual acts and less serious sexual contact but it didn't it seems like you know maybe that was a result of compromise maybe it was the result of oversight maybe it was stupid but it just seems like that's sort of what physical injury to include sexual assault and sexual better questions of statutory interpretation should start and that's what the pine language of statute the question presented here is whether under the current version of the f t c a post two thousand and thirteen amendment any sexual assault automatically qualifies as a physical injury mr johnson has argued that it does because he contends the purpose of the two thousand and thirteen amendments was to expand the united states on ability to cover all sexual assaults but this court has said that we don't get to legislative history at that time as a result or if we had because those allegations had to be accepted the argument would have been rejected and it was only later after he we deposed mr johnson remotely when he was in the bahamas and after he responded to written discovery that it became apparent to our office again we did not handle the motion to dismiss but we did come in after that that was when it became apparent that we had this argument that his f t c a claim was also barred because of his admission during his these you know in prisons i just you know it's a problem and it's just hard for me to believe that you know congress and to me to you know protect said happened here or all sexual assaults in general but i think one way to distinguish the confirms your honor is raised and that the difference here is that we're operating on the s c c a and we're dealing with a question of  sovereign immunity and you know iraq i'm just curious do you know of any other court that you know make this ruling any other circuit court that sexual assault falls outside the  i do think there's a good reason for this act being drafted the way it is and that's because we have to remember that we're there for business limited to the prison context and federal prisons are highly regulated and highly sure your honor but routine searches i know that's not what we're dealing with your searches do occur in the ordinary course of present management and i think congress likely recognize that we can't have lawsuits being fought every time a prisoner is search congress that doesn't then question if the statute hadn't been amended or am i coming through ok i'm getting a note on my thing that says your internet connection is unstable i hope it's not too unstable  it's unstable enough to make me red as a beet but hopefully not the only question to come through so but if they get the statute had not been a minute are you saying that for instance if a prisoner was drugged and then a guard had intercourse with that prisoner not violently but certainly not consensual y that that wouldn't meet the because it will injury requirements setting aside the amendment that brings sexual act into the mix but i mean that's a pretty tough pill to swallow it is your honor i agree with you and i would say that i don't know if this would be the case in that hypothetical scenario but that it's important to distinguish between mental i guess my point is that pretty amendment you know i guess just to sort of be blunt about it ordinarily sexual intercourse doesn't shouldn't leave a physical injury  whatever i think your position pretty amendment would be that nonetheless was not visible injury because there was no kind of visible tangible manifestation you're on  think you could take our argument here today and a part of that situation i think you're right but i guess your position is i don't have to be so strident because in two thousand and thirteen congressman to the statute in a way that makes my position clear i mean i guess the real question is whether you think the nd and seven circuits were right for a amendment in deciding the cases that they did doesn't really control here but sort of testing the limits of your position sure your honor i've got i do think there are a couple ways to distinguish oral sex and i guess this gets to your honor's hypothetical but you know if that case was decided under the current statute on the court there would not have needed to travel down the path that it down and find that the conduct amounted to a physical injury because it could have resolved the question by concluding that it satisfied the definition of a sexual act and so i don't know that again putting aside that we don't think there applicable because of the significant moment in tw thirteen i don't think jail vs winner is really addressing the precise question we're dealing with here because of the conduct at issue you know a couple of other ways in which i don't think those cases are noteworthy if not important because the courts there were not addressing in a question of sovereign immunity and they were not required to resolve any questions or ambiguities with regard to the thirteen amendment congress made very clear physical injury or or sexual act but then when it when it included the definition of sexual contact the reason that that lesson included sort of in the in the prohibition was that it wasn't to be every circumstances of sexual contact but that you would still look to the state law to see if indeed there was physical injury and then sort of travel under under the old provision your honor i don't think we should be looking at what the underlying state law is a point that was made i believe in m and again to the government's point about line drawing appeal this position is that the line should be drawn by the underlying state statute again whether or not the injury are the at that was