what the claims regarding the two complaints are since the beginning of the case and both complaints at issue appellants alleged breach of express contract remedies by implied contract terms work in breach of express contract that we further showed that the opposition of personal services by contract which the trial court acknowledged happy with its own opinion that acquisition was four and how do you know those four not within the sixty well i know first because the government has never so contended and i know second because the contracts say on their face this is a contract for not personal services but that was one of the court's findings if you had no evidence that showed that that your four should be within the sixty or here on the threshold motion on the pleadings the trial court engaged in premature fact finding that case if the government wishes to show that it is a legally allowed and be factually capable of reaching into the pot of six hundred and sixteen contracts that were the nominated for not personal services under which they acquired personal services they think they can reach that part of six hundred sixteen and pull out our four and fit them into the sixteen year for the last sixty years roughly that the turnover has been not constant most of these people have annual contracts running back to back now if we look at the trial court's analysis of the  authorization the sixteen that only covers sixteen out of six hundred sixty or sixty were authorized they used for they got a gap of sixteen six hundred sixteen people which takes from forty four of the six hundred sixty were provided personal services under contracts that were spilt for non personal services and that the government didn't if they think they can make a factual showing that these real you were among the sixteen unused authorized contracts they didn't try to do it but the contract on their face say they can't make that choice because the contracts on their face say this is not one of the off rice contracts that if it were one of those that would have said this is a personal services contract these contracts say you will not provide personal services and you are an independent contractor and by the that your your position is that the breach came because the government exercised various powers that go beyond the powers that it was entitled to exercise with respect to contractors particularly and specifically under supervision let's call it that that is what and yet your damages seem to be your argument that they really should have been paid as if they have been employees i mean why is it not the case that your damages are attributable to any loss that you suffered by virtue of the additional supervision that you had to endure well there are different ways to measure the damage and again i believe it's premature and i'm not i'm asking you why is it your way of measuring at the right way to measure in fact it's the government's way the figure we use twenty thirty thousand dollars per contractor per year of service is there asked in that well their estimate of how much more that you would have been paid if you had that your employees would have been paid if they had been actual government  and my question is why isn't that the correct measure of damages as opposed to whatever loss they suffered by virtue of their having this additional supervision i cannot rule out the possibility that on the law we get there that be the analysis of damages we do know that they provided a service that was more valuable and a service for which they would have charged more if they knew going into the contract that that's i mean i suppose your answer is they're welcome it if they educated been told they couldn't follow the course of doing contractors they would have upped it to hire them as employees but we don't know that well that is correct but they could have pursued opportunities outside where in the world of employment the bargain contract on page six nine and seven seconds up you will not be subjected to direct supervision you will not provide personal services you will not be supervised in that manner a method of performance of courting lee you will not get benefits i'm sorry i couldn't put page again i've not only setting up the appendix card i'm looking at nine o seven that's part of the complaint is that what you're referring to individual contracts representative of freedom of work so looking at page ten forty four what language terry relying on there are two pieces of language they follow one in one types of compensate and that is a quid pro quo of limited service and that scope of limited service was breached quid pro quo of limited service for limited pain there's another measure of damage that would be applicable to the alternative claims which are for quite america if these contracts are voided in their heavily on that finding we're not going to invalidate this contract the senate committee records at least one statement to the fact that we don't want a violation of this statute to lead to litigation over the libby and another ba facts that the eighteen to play that hand that we do not have is that  the statute itself was not intended to protect the plaintiffs contractor the violated regulation here was most definitely intended to protect providers of personal services when that regulation says you shall not acquire personal services by contract it's forcing the government to hire providers of personal services as employees if not within an off rights use of personal service contracts which pay more that regulation forces them to hire these contractors if they want their personal services and therefore pay them more that's the logic of the statute in the the subsection above the prohibition hiring providers of personal service on contracts circumvents the civil service law and that section says except as off writing shall not do it they were supposed to hire us under the that the government and the way they were to provision that would take to cut to the chase i i think i saw two things that were mentioned in the course of the briefing one is government equipment and two is location of services those are usually are the only other things that you're pointing to though those no not at what else we're not pointing to them here what do you point to the government points that i understand what but do your work or the like employees and not as independent but i would but that's just a contract mean and in practical sense if if they weren't being supervised but they were asked to perform as contractors in the same services what does that violate violates the contract now because the contract says pacifically you're going to have to do this kind of work and this is how you're going to be paid so how would that violate the contract the contract says again you won't be an independent contractor that term has meaning i an independent contractor and the most important feature of that is the degree of supervision is that when you're operating on your own or you're operating under the close a provision of your employer what i'm keep trying to get from you is what else besides supervision in the f a a are the same regulation subsection the independent contractors shall not do the work of federal employees they should not do the same kinds of tasks and they will not work with integral specifically set out that the that the individuals who are supposed to work for example as specific locations use government equipment and be answerable to contracting officers or representatives of contracting officers in terms they'd be answerable to the government for the performance of the work as any contractor is answerable to the government many of the allegations in fact in the complaint are not even allegations that these pla sampling of contracts that the inspector general has looked at but not specifically made findings with back to these plaintiffs contracts so all in the end all the court really had to look at in terms of the allegations in the complaint were a very few very general allegations that the talents were subject to supervision and the court found that that does not apply to the allegation of breach of contract when the contracts themselves did require that the individuals be employees and so in no way is that tied to the allegation and again we would say not even a plausible allegation a breach of this supervision which is in the contract so for that reason the court found that there was not matter to an entire a different matter then with hyperlinks let me return for a moment to the express contract issue i suppose that you have to keep saying employee which of course floats the dice but suppose you have an individual who has been engaged by contract to do certain services with provisions such as there are in the record in this case saying that the individual will be paid x amount but will not be subject to direct supervision in that individual's conduct of the work and it turns out that there is in fact something that everyone would agree a store rection provision it's hovering types of provision and what is the remedy that the contractor has in that setting none of this to file a complaint or what what would that you're in that position let's say where you go to get relief is it just you breach and walk away you're going to be answerable to the government to make sure that it's performed correctly and in accordance with the government's requirements and it's going to be contracting officer contracting officer officers representatives checking that work with would retirement benefits translate into money damages from the personal services contract the court would have to find that the appellant's complaint failed to say flame in that regard because they had exactly not identified any essential term only employees are entitled to an employee of the federal government yes your honor and that's the reason why the services they just acquired them on the cheap and unlawfully so you're not suggesting are you that the agency could easily have done without all these people and they were lucky to have any kind of work at all  point is that the agency thought it needed these people and if it were told conclusively that it could not have them on the basis that it got them the hypothesis says that it would have then ponied up for more money but we were not dismissed because what the wrong for we belonged in the court of federal claims and we belong there now we were dismissed prematurely go into your honest question about damages i don't know the amount not supposed to work as federal employees and they did they were not supposed to be working on it interim government missions and they did they would have charged more for that if they'd shown up t sweep the floor were told to go into surgery perform brain surgery they'd be entitled to more money but you know where's that plan i'm just illustrating the point they did something above and beyond that is played everywhere they did something above and beyond what they were hired to do besides the excessive supervision where is it played that there was something above and beyond what they're hard to do for example the various regions for example i'm looking at you know the breach of express contract is it page eighty nine zero six that's in the amended complaint or you could look at the original complaint yet when you want  the list of breaches that i read out earlier comes with if you're interested in the second the man a complaint you are either one working like employees pending sixty eight seventy nine ok eighty one to eighty three ok ninety ninety eight one hundred i would also like to add that and by the way for each of the next several regions that we discussed earlier some of the other list of paid sites often overlapping but also like to add that other fuckers including the inspector general of the i r s audit an appeal brought peaches here today in the us district court have found that individual contractors have worked in the manner of employees and were directly supervised each of our balance all that asked to him or her own self every fact relied upon by those authorities to fight the provision of personal services like an no limit it  scope would still be what it is and it would still be breached the scope says you shall not work like an employee shall not be supervised by a federal employee you shall not do all the things we've been discussing the contract say that call them  and say they were within the authorization but they still say what they say these contracts are not merely an authorized they are written completely differently probably to mask the violation the over time violation of the prohibition they are written differently these are not the same contracts by their terms some of which were authorized and some of which were not these are different contracts and they've taken that position themselves in tell them that's illegal it's done a contract in excess ok i think i think we have you already richard thank you very much thank you