ok morris versus thompson all right you're going to need to pronounce the name for me i'm not even going to give it a try basically the firies does not apply in state action diversity cases in this particular state action diversity case because it was brought against somebody who was in their individual capacity and was not certified specifically cover these sorts of cases there's a process by which the individual actor who is not acting with authority for example is not a commanding officer or the secretary of the air force that they send their documentation and send all the filings out to the u s attorney general to decide whether or not they're going to certify that person as being in the course and  said and obviously it's quoted in there we think that state law claims would apply and would equally be barred by faeries absent action by congress but you congress after they acted in one nine hundred eighty eight to amend this specifically and these are mandatory provisions again in the first night circuit cases the courts discuss this and discuss how the there is a there is a process they the attorney general will certify or not certified and the and if they do certified that person is in the course and scope of their employment then if the district court does a review would confirm it if requested and they substitute the united states in the original  immunized under the westfall acts and the united states obviously in this case would be can you know it's under fair use so congress has created a statutory solution now there's nothing in the record to indicate that appellee took advantage of the statutory solution so instead he seems to want to get around it by asking for a judicial solution but congress has provided a remedy what's more is that these acts in this this process actually addresses a lot of the core concerns fairies and the especially the concern about military autonomy military just plain aren't the judicial invasion of this congress took that power and put it in the hands of the executive which is the branch that quite frankly is most equipped to evaluate whether or not there would be intrusive such there was a statutory remedy available and whether attorney general fused to certify or it simply wasn't taken advantage of he didn't act and so appellee is attempting to get around it by asking for a judicial record that these acts also cover what is obviously the biggest hole in fairies from the supreme court perspective right because obviously state law claims against an individual in their individual capacity has never been addressed by the supreme court they've addressed claims against the government against people with agency with the government such as commanding officers but they haven't addressed people in their individual capacity the actual tortfeaso statements from both sides it appears that no disciplinary action was taken against either party what's more this is a twelve b one motion for want of jurisdiction and jurisdiction was established in this case normally in various cases we have federal question jurisdiction subject matter jurisdiction obviously can establish a number of ways and we normally have federal question jurisdiction but here we have diversity jurisdiction and there's been i don't i don't think there's any dispute that the parties are still diverse in fact appellee cites in the second paragraph of their brief that the parties are still diverse as they were at the time of filing and the amount of controversy is more than seventy five thousand dollars so in order to where those theories acted to say jurisdiction doesn't exist here appellee is asking for us to actually reach out and extinguish  due to medical reasons what's more is the scores have also expressed concern that we'd be opening the floodgates to by allowing these servicemen the servicemen suits that we'd be opening the floodgates so litigation but this process has been in place since one nine hundred eighty eight and in fact just recently you know the ninth circuit has recognized that the first circuit has recognized that and we see it a number of times whenever you hear about the government substituting in this is the process on a state law claim that says the process that they use when the united states substitutes in for a federal employee and in the statute it specifically says that federal employees include military personnel is that when the united states substitutes in for a federal employee that's that provision in the statute or the federal tort claims act those are using the provisions specified that when a federal employee is served with a lawsuit they shall that's not it you know the u s can substitute in if the attorney general investigates and determines that he was in the person was in the course and scope of their employment and certifies to the court now again that is reviewable by the district court upon request so there of have been cases where it was reviewed and they didn't say the district court refused to certified refuse to substitute and the tenth circuit case was actually remanded because there was a request for certification they were certified but the court the court below didn't actually had to rule it or have a hearing so it's  a process that's been around for a while and it's a process that for one reason or another it doesn't appear that appellee availed himself of and if he was successful if he had done so when the attorney general determined that he was acting as a military officer in the course and scope of his duties the united states in the court agreed the united states would be able to substitute in and fairies were picked on because then the united states would be the defendant and obviously fair use bar suits against the united states in the military personnel arising out of their military duties so in our pinging your honor this is the this is this remedy is what congress intended to fill that g to deal with those coins i mean they said they spoke the courts have repeatedly said congress maybe should revisit this maybe should say something about this there is that this is very broad well that's what congress has chosen to do is to of course you know other concerns that have been eroded over the years somewhat you know yes the uniform system of compensation is available and appellee harp on that if it but a uniform system of compensation as the supreme court said was never meant to be exclusive and so the fact that some medical benefits were available does not preclude recovery in this case though to be fair when i leave it there at this point this is just a jurisdictional issue on the twelve the one mo on the amendments to the to the federal tort claims act are very specific and very precise as far as the procedure to be  and that's and that's why fairies really shouldn't apply in this specific case it's pacific with this this statute specifically applies to state law claims against federal all federal employees and so there is no need to extend ferries immunity shomer us me show me which was a title seven action and therefore was a federal claim not a state law claim and neither one of those cases therefore apply to the situation or to the district judge mean they are the remedy and of course this is a jurisdictional issue finally the pollies contention that the factual attack under section one thing that the western district failed to address is that factual attacks on jurisdiction as opposed to facial types yes you do have to the burden does shift to the nonmoving party but there even though there's no specific procedures the supreme court has said that i essentially loosely governed by rule fifty six where in your the appellee isn't required to file or the responding party is not required to file an affidavit they merely have to point to an adequacy is in the filed affidavit or facts and documents already in the record which is exactly what we did however the western district completely disregarded that and simply stated that we didn't file any thought about the day of its or firman of evidence something that is not  d that mechanically applied farias assuming that that was correct remedy and therefore your honors we would request and urge you to please send this to reverse and remand this case please the court i'm here today proud to be representing michael thompson the apple e i want to briefly addressed westfall because i was very surprised to hear that discussed and i do not this is the first time having that i heard that the issue discussed or addressed was at the podium today there's an assumption there however that is mistaken and that is at the time this lawsuit was filed my client the apple e was no longer a federal employee and he he is now again a reservist but at the time it was found he was not a federal employee in addition there was a prior litigation litigation a little bit going on at the same time between the appellant's where they sued directly the us government to the united states of america in federal court and filed this separate lawsuit in state court they were going on at the same time except that they had difficulty serving locating my client and serving him so but in all of vance i would have not briefed westfall because i didn't recognize that as being an issue in this case but i can tell you my client was not a federal employee at the time that this litigation ensued i want to begin briefly with a discussion of the evidence that's before this court and was before the trial court and about our factual attack on subject matter jurisdiction then i want to address how that evidence compels the dismissal of the cause of action under the fairest doctrine i want to address appellants assertion that  removal somehow created summary subject matter jurisdiction independently or superior to the fairest doctrine or that it waived it or stopped it we made a factual attack and we produced evidence appellants have argued there's no evidence for the court to base of finding on and it's true appellants produced no evidence there were no affidavits there were no documents attached to their response the respondent you do not need to produce any kind of evidence and this court in patterson versus weinberg said once a face factual attack is made it is up to in this case the appellant's to produce affidavits or other evidence in the four hundred thirty first thirty fifth scuse me fighter training squadron at randolph air force base both of them were attending a roll call military training function they came directly from their duties in their uniform to the roll call function meredith morris judicially admits that she was ordered to involve mr thompson in this activity by attempting to restrain him with other people she it's unequivocal by my client's affidavit he was recuperating from a head injury that he had been warned any blows to his head could be catastrophic even fatal that he was unaware of what was happening this was not his squadron he never experienced anything like this before meredith morris attacked him from the rear five or six other officers attacked him from the front he fell down on top of her and his head slammed the ground at that point he began a fight to save his life all the while screaming many things and probably some of the obscenity is in her petition but certainly screaming i have a head injury get off of there was an hour or intoxication was are correct that is not correct but again that's an allegation there's no evidence to that effect and quite candidly my client upon reading that said why didn't you get an affidavit from me that that was not correct but that is not correct the evidence that is before this court comes from the affidavit of michael thompson and it comes from the appellant's own pleading the texas supreme court under sure said the rationale for ferrous is that suit brought by service members for injuries incurred incident to service would necessarily involve the civil judicia in sensitive military affairs at the expense of both military discipline and military officials say in stansell the supreme court said we really need to avoid inquiry into military orders not just the consequences of that in stanley the supreme court two years later said we really attest that depends on the effect of the inquiry into military matters is not appropriate we really shouldn't be doing that because any inquiry into military matters is intrusive and has the potential to impede the discipline and the efficiency of the military rather the court in stanley said we're going to adopt this bright line incident to service test and i think judge southwick and reagan versus star craft marine you went through that history and they didn't run a group clearly what you did understand  understood it very well your own it's very clear that the fifth circuit uses a three factor analysis in terms of that incident to service test first what is the duty status here that's absolutely undisputed they will both on duty they were both that's clear the site of the injury is the second factor very clearly no dispute here they were on base they literally came from training or work or off an airplane in uniform to this military roll call function the third is the activity being performed appellant meredith morris admits this was a military training function it was designed to build morale it was designed in my client's affidavit he discusses they are talking about things that have happened as you were a pilot things stories sharing building camaraderie discussing  problems those three factors are absolutely unequivocally met here and so we have an injury claimed by meredith morris and her husband that is clearly incident the service there's no other way to if we can't get around training exercise by restraining him with other officers she indicates he wasn't ordered her defense is he wasn't ordered to respond so he must have been acting outside of his authority and yet he was fighting for his life at this point and every member of the service is an asset of the united states government has a duty to protect himself or herself you can be court marshal think the court can take judicial notice for becoming too sunburnt to report to duty or you can be court martialed for being too intoxicated to report to duty here was a man who knew a blow to my head might kill me and he fought back now if we if we step back and say ok even though the supreme court has said you know we really don't think we ought to be looking at how intrusive the questioning of military judgment would be even if we take a look at that  we would be looking at orders about what was being discussed why these orders were given we would clearly be questioning the order of the sapir ear to meredith morris we would be questioning this officers reaction to that with regard to state law claims the  that there are jurisdictions which have held this doesn't apply to state law claims and yet of course you questioned him about the hold in this claim actually when you review the cases cited by appellan in those cases they discuss fair arrests and they make a determination that fairest doesn't apply and it has to do with incident a service or sometimes how intrusive is the employee going to be into the military  in the day versus massachusetts air and then a whole in this case in fact was that pretty well superceded by the statutory change in your way or are you talking about the one we just that was just brought to our attention would know that when that's what that's what mr mr sharon's answer was to the question of whether enrolled in this is is is binding an applicable and i don't know the answer to that because the first time i heard of that concept was today i didn't see it brief or any reference to it what i can tell you is as he elucidated that that change in the statute was that a federal employee would have to petition the government in this case my client was not a federal employee when he was he was a federal employee when the action took place but i would have to review that and brief it the cases fairest because the acting party the service and conduct fell so far outside his official authority or what he was supposed to be doing that's not the case here we don't have that situation  also has been addressed the fact that these are soldiers of the same rank and it is true that this court has not ruled with regard to soldiers of the same rank in the fairest calling and whether fair a surprise i would urge this court that there is absolutely no distinction between applying ferrous to an east superior officers a claim against a superior officer as opposed to  officers of the same right in fact in this case i think the court can take perhaps traditional notice depending on your experience with the military that my client was a on staff in this training squadron he was a member of the staff and although he was an officer and the appellant was an officer she was a student and so in military jargon they were not really of same length in the sense had he had they not both been married at the time and had they had they began to date that would have not been appropriate because he would have been regarded as having a higher rank but how can you say to anyone why would you join the military if you had to say to an enlisted man or a lower ranking officer that superior officer ordered me to do something and i did it by that that superior officer cannot be sued well as jordan versus hans from the western district of missouri and kennedy versus mcguinness which is out of massachusetts and those cases all allow that there can be no  my clear to me is getting the best me is that time of year those are serious i want to address the claim that diversity jurisdiction in some way because we invoke diversity jurisdiction and remove this case from state court to federal court that somehow that created subject matter jurisdiction we were entitled to remove this case to federal court it was complete diversity of jurors complete diversity between the parties and there was the appellant's played for damages of a million dollars that removal doesn't operate to bar our then request upon thoroughly understanding the facts of this court noted in small wood versus illinois central railroad that you cannot create subject matter jurisdiction by a stoppel in fact a federal court's first inquiry must be whether the court has subject matter jurisdiction the supreme court held in orbit vs y n h corporation that the objection that a federal court lacks subject matter jurisdiction can be raised at any stage of the proceeding even after a trial and even after the entry of a judgment supreme court ruled in california versus laloo no action of the parties can ever confer subject matter jurisdiction upon a federal court  supreme court ruled on american fire in casualty vs fan a stop of doesn't call this court held in energy management in shreveport that subject matter jurisdiction cannot be way and it was the duty of the the trial court is the duty of this court to decide whether it has jurisdiction before addressing the merits in conclusion we believe there was absolutely no basis to claim that any action in removing this case to federal court created jurisdiction where it didn't exist we would ask the court to affirm the judgment of the trial court in finding that the this court does not have that court did not have subject matter jurisdiction over the claims asserted because they clearly squarely fall under ferrous under and because of it's an injury incurred incident to service under the exclusive net exclusiveness of remedy as well i don't believe it's fair that it probably can claim surprise when are the two main cases that we've presented to this court that we are relying that are post nine hundred eighty eight westfall amendment provisions which this would be an issue ensure debriefed for so that the panel would have been aware respectfully your honor we did not directly state that the westfall act precluded their claims but also that somewhat shifts the burden on to the plaintiffs we are jurisdiction because that's what we apply the federal procedure to the state claim however if it's a mandatory burden on the person who wants to claim that that immunity to certify it to the office of the attorney general it's not the responsibility of the pla responsibility of the person seeking to do it you're asked to to do what the public is asking would be to seek us to present their defense for them to the score as i said it is included within the federal tort claims act as an exclusive remedy i don't know what would happen if someone failed to do it if there was some sort of ineffective assistance of counsel where it wasn't raised if the age is never notified i kind of feel if personally i believe that if you don't raise it you lose it however i think congress has already spoken to this by putting the power in the executive branch and also playing the remedy within the statute that certification can happen at any time prior to trial honor so to do what a pilot is asking would be seeking to circumvent a power of the executive as granted by congress and what's great about the westfall provisions is it has stemmed the tide of litigation from state claim that allows the executive branch to take an immediate administrative look at whether or not they want to extend and put the u s government in the place of this individual tortfeasor to make a determination on whether or not they're wrapped in the course and scope of their duties  it also allows judicial review for the tortfeasor at the district court level should he be denied certification the tortfeasor could still have the judiciary review that certification process that is completely absent a record that either of those procedures were follow and so i don't think we can read into it that the attorney general ever certified and so our position at this point is he's an individual actor subject to the state of texas claims that we presented in our original petition against him to to  go through a few other things that upheld mention congress as specifically addressed the issues the policy issues of floodgates military tonally in uniform system of compensation by a lot putting the power within the executive branch again all of the cases appellee relies on our say that this there is no federal claim in this case the this is a state claim absent any sort of immunity challenge that can be extended to him this was what the police asking would be extending an equity remedy that congress has already resolved