and i'm here today on appeal from judge boyle's granting of the defendant's motion for summary judgment not going insult this court by reiterating what standard as for granting a summary judgment and how the non movement is entitled to all inferences in his or its favor i will say that the defendant seemed intent to try to put this case into a military infrastructure when really what it's all about is your honor as well no i'm no judge king knows this is a civil rights case this is a case where noncommissioned officers in a war zone intercepted monitored read and forwarded  e mails without any authority or or any legal basis and they've sent them back to people that were not even in the chain of command  read well as i heard your honor say in the i need to answer your question i think we do have direct i mean i think we've got the evidence that the testimony of general testimony of general griffin and others that this is from us that he had his i t guys in place to get all the e mail he received over  e mails but it didn't mean it didn't is any evidence that he'd shut it like emails and it's then that to know the evidence is that he said they were unsolicited he abra looked at the record pretty thoroughly but i want to give you a chance to see if there's some evidence other than that what i get that is would create a reasonable inference that beyond just an interim or involved in the decision to the department the army inspector general came in and said that's undue command influence in threw it out there after punjab began a campaign against colonel suggesting he was trying to overthrow the adjutant general that his actions were unethical unprofessional and closely parallelled treason and mute something along those lines is in turns get around on topic get around very talk welfarism the way i read fairies as it applies to the federal tort claims that i don't think it has anything to do with this federal military this is as i said it the bad guy asked it as a ninety three case it's a civil rights case it's a civil rights case and to answer your question a little bit more in depth  fourth amendment and if it might be different this was all in a military infrastructure but it was not because by jazz first of all he was not in the military when he received these e mails as we pointed on our brief we take strong objection to that the army regulation in place at the time said that even the army computers that were in kuwait in a war zone and the users were entitled to  to talk about qualified immunity just for a second because it seems the defendants are arguing or they argue that even if there was a violation none of these people knew about it we had no clue that this could possibly be a violation of fourth amendment i got by the time this came to pass the electronic communications privacy act was already in law  computer fraud abuse act that's already it in law even the telephone consumer protection act was already in law bus there's a slew of cases that stand for the proposition that there was an expectation of chief of staff of the governor of north carolina using ok my client of treason and then relying upon two guys that he knew camp in kuwait to access monitor read intercepts and forward e mails to to his home computer when he wasn't even in the military so duty and then of course the the submission of those e mails to ingram to ingram i think all the fact that that he admitted he was a mentor to may please the court my name is gerald robbins with co counsel charles why did we represent general in grown in colonel bond jess as far as the court is aware we're here on with the plaintiff's appeal  stanley reiterated again that both ivins type relief as well as non relief under mendez would apos now as the corps pointed out and in speaking with mr webb they have now away beginning of their equitable argument which leaves solely the request for damages here we would contend that that request for damages brings this squarely within faeries very  mendez's is no longer applicable and faeries is the only case that applies in terms of the damages client mendez's this court is aware i'm sorry varies as this court is aware uses an incident that the damages from which plaintiff claims arose from the alleged hacking in intercepting of his e mails while he was on active duty idle ten status in kuwait and it has nothing to do with where and when general ingrown and colonel bong just were at the time that they received these copies of these e mails it's where can go after civilians the reason you can go up national guardsman was active duty is because the incident a service test arises at the time of the alleged events and how did they her not where did they occur but how did they are and here what we're talking about is it happened in kuwait in a war zone while colonel a can was on title ten status that is that as judge king you pointed out in the conversation you had with mr well colonel or i'm sorry general ingram was in fact attacked at the time this happened with the the north carolina national guard at the time colonel bond just was not with the north carolina national guard he was still a member of the north carolina national guard but he was serving in norfolk virginia with a joint task force but he was still in the national guard so all of the parties in this matter were still national guard they were on active duty that you were discussing with mr will judge chad omf he complains about the fact that there was a negative but we are officer evaluation report and there was at one point in time a negative  that might be evidence of motivation but that i don't see how that any reasonable inference of evidence of taking action and we would agree wholeheartedly with your honor and in fact i would point out further that when the army did its investigation as to all of the alleged allegations that transpired here they said number one the judge the general in grown did not have any undue influence in that  as it relates to the potential of meeting the burden of the moving party and that is to demonstrate that there is no substantial how does that do it one person's opinion that you didn't do wrong that that  the burton i don't think it goes to the burden your honor but what i do think it does is it demonstrates the purpose of fairies and what this case is truly about in fairies and that is that we don't want to interfere with military discipline we don't want to interfere with it but you just said you want to go to the my question of circumstantial evidence which has nothing to do with verizon and maybe you want to go back to the ferry well i think you understand yes your hon evidence thank you hala abilities and you respond to hitmen says i can't see how low ranking enlisted folks are freelancing without having the story i can't see lower ranking enlisted folks freelancing without having the supervision of a captain or major in at that level of command what do you say to them i say that may well be a true statement but that's not relevant to these individuals it has nothing to do with whether or not vance just or general ingram said anything or done anything to try to ensure that the two soldiers in kuwait mccarthy and jones would submit these documents to them mr griffin said to my orchestrated it and carried it out what about that assert that while i think he said it right at the beginning he has no personal knowledge and even if his belief is so he that he doesn't give us any information which they don the scintilla of evidence that is but at the same time they treated him as a fact witness they never notified us that he was in fact an expert witness the time for naming expert witnesses had it has expired at expired prior to doing the deposition  and in fact as is but why is our so why is that so while in connection with the just the evidence presented by or the deposition engram had anything to do with it and then the testimony or the concessions made at summary judgment by counsel for the plaintiff both at summary judgment and here today where's their belief they have no concrete evidence that  when the first one specifically that effect of this is sect the second one no no you're honestly know about the third one this is on i believe it to enlisted soldiers are doing something to provide information that people beyond their ranks and they are either directed to do it or gave his suggestions to it so if the general got them if i just got them as far as i'm concerned from a common sense approach there's a fact somebody had asked them to get the emails or they would conversation with with the bench there was no indication by either staff sergeant carthy in his deposition or in his affidavit or specialist jones that the relevant issue before them and in fact as as mr webb has reiterated to this court this morning the reason according to south'ard mccarthy was because that was somebody they could trust that's why personal belief what about that you balance that all well under that standard how do you do it what do we do with that understanding i don't believe that the statements by colonel barnes that somebody must have given him that that advice is evidence that that somebody is one or both of the defendants however staff sergeant mccarthy's testimony as to why he sent the information to colonel or to colonel vaughn just simply indicates why and how it got there but it's not dispositive of who in fact sent him the information because who sent him the evidence again your honor i believe that colonel barnes is testimony is insufficient to raise the evidence that the individual soldiers in evidence before the court all he says is this is my personal belief he doesn't give any facts as to why that is his personal belief in fact just prior to that he said i have no facts what about barnes says on a common sense  process of they received a job in their field of play it was there is when i say field to play i mean in their field that is being impressed information technology there was no evidence that this job was the fact that they were hired alone i do not believe raises this beyond some judgment by the trial eighty four punjabis admitted himself to a colonel jones that jones and mccarthy work was his i t guys and they had set the computer up so they could get them meaning the emails all and then brigadier general griffin says join appendix page two eighty five i think that von just had a burning in his soul to get to get a and i think he hated him i think he despised him over over the fact that he wrote a bad oh ye are one and then of course as you pointed out because moments ago read to he testified that he thought fungi as planned orchestrated it carried out on just was internal conflicts resolved favorably to him the most favorable of possible alternative inferences from it drawn in his office and reasonable it be a reasonable i agree but this is a pretty broad standard straight and carried it out what do we draw reasonable efforts from a person who has no knowledge but just as the only well it's not like somebody just wandered into the national guard center and rah league or carolina these are people that are there all the time and they know these they know the party i think the cumulative effect of all these statements by regular general griffin colonel barnes colonel or general hitmen all of them rise to the level of allowing this court to draw counsel and then go to the next