felt a little bit like the aunt in frank sinatra song high hopes if you recall the aunt was trying to move the rubber tree when everyone said the ad can't we took this case because we believe then as we believe now that the plaintiff's claims against the u order which the united states was required to address in this case establish that the plaintiffs know it was on active duty at pearl harbor he took advantage of the navy policy which permitted service members two hours for lunch if they faeries barring in her analysis she applied the four factors the set forth in jackson dryer and bon she concluded that the location on pearl harbor weighed in favor of the fairies bar that he's active duty status in jogging during work hours weighed in favor of the ferries bar that is used as a special service center as well as his extra one half hour for lunch waiting favor of the ferries bar and finally that he's jogging on pearl harbor was subject to military regulation that the court should not apply ferries to events in which the service member was not subject in any real way to the compulsory military orders or performing any sort of military mission as a result of that point hav recently been reversed and schmidt that been the last case before the court we felt like and half with high hopes and then the cost of the decision came out and at that point i think we were confused at but still with high hopes the our office on base if they did not which i i take it that they did not because i was in the military and i was not aware that civilians could book through in the yard but if they did not in this case is materially different from the facts in costco because similarly situated i think that is one material distinction between cost of the other one is that i'm not aware that the plaintiffs in the costal case were on leave it appears that they were off duty and as the courts including the fifth circuit have held in the past there is a range of duty status from being active duty armed duty to being discharged and it falls somewhere in between each case in this case our client was on eleven days of leave at the time he was killed he was not off duty he was on leave which means he was not subject to the confession of military orders at the time  but it's not any less perhaps at the time in fact the duty i think being on liberty is more active in other words you're active duty but you're on liberty which means you're free to do whatever you want to but you're still on active duty you're subject to the immediate call of the military whereas when you're on leave it has been approved by the military head of time that you can go and do whatever you want unless there are limited circumstances where they can call you back  do battle to go to war or something like that but it is a material difference i would also point out that in judge moore weighs order she states that this case is not as analogous to dryer as it is to a bar and i wanted to touch upon it because i think there is a distinction there that was overlooked by the court in the dryer case the ninth circuit applied practice over policy in this case judge moore way apply policy over practice and the result was that she distinguished dryer and opted for a bar if you look at the language and dryers on page eight forty five the ny circuit help under base regulations use of the sole of point area consisting of a small beach and boat launch area is officially limited to members of the military community and civilians to acquire used permits in practice the public is often able to gain access to the solar point area without acquiring a permit in latcham the depositions that we took and the regulations that were provided by the army so that the military community and civilians are permitted to obtain access to the wine army record center in accordance with rules and regulations they have to get reservations if you have proven they can go there why army rec center by policy is off limits to the public in practice however the public is permitted to access wine army rec center and as evidenced by the criminal record and murder in this case the public does access prohibited areas such as cabins forty f sports if you look at the criminal history in the record captain forty f so the practice is not the same as the policy in practice they let these people walk through that compound and the administrator testified that they don't follow the people that's up to the security side and who knows whether or not the security side really follows these people when they go through there they let them use the coke machines they let them use the showers how do you distinguish a person in beach where by looking at them visually as to whether there is allowed to be there they're part of the army approved list or whether or not it's impossible so we were distinguished from dryer on policy when i think we demonstrated to the court that the policy is not in practice this  as a policy statement i think we least were saying to the court that when the circuit court and i understand that the court is bound by precedent but we're really saying that when the courts get to the point where they start saying that the precedent is irreconcilable then you have to reach for something which is perhaps perhaps reaching back to the language of the act and seeing whether or not it's possible to take the language of the act construe it with some of the precedent and produce a result that is meaningful and ha universally in the one circuit are helpless very smart but when you get beyond that to the other end like a jogger jogging very active duty time on a navy harbor pearl harbor a base not very far and then you go further towards the right and you have man on leave on a recreational basis run by civilians murdered it's hard to reconcile that case with the president as well as with the language of the statu a program run by the military under his morale recreation and welfare program the third factor cost of the court mentioned that the the activity of the program was under the command of military officers enter through the front gate and they have to go via guard to do that and they're allowed to then walk directly to the beach but the reason for that is that in hawaii beaches are public property and and the civilians have a right of access to the beach so the military is a good neighbor policy allows civilians to go directly to the beach but the record also shows that there are signs first of all there are signs at the facility if i think any civilian that they are not permitted to enter the cabin areas which is where one officer lashon was killed the record also shows that it's understood that the military enforces this policy and that is a significant distinction between this case and the dryer case the record shows that the military has three security officers who are present at this installation on twenty four seven bases one of the officers stands at the gate and checks everybody who comes in and second that they they will walk throughout the facility they will confront anybody who they see who looks like they don't belong there there are just a limited number of people there at any given time and they will enforce these rules they will tell them you're not allowed to be in this in this cabin area in this in this infinity area so this again is very different from the dryer case where the hind circuit said well if it's not enough just to have a rule that the civilians can't come on if the military does absolutely  installation in cost though the death occurred i think it was seventy five miles away from the closest military reservation on the exact river in this rafting trip of the court in that case apply the fairest doctrine anyway because service member again was unveiling himself of a military benefit the right to pursue paid in this rafting trip to time but again the courts as you know have have looked at the site of the accident as an important morale among members of the military and we know from common knowledge that this isn't long deployments and the stress the service and particularly now that we have a lot of volunteer contract army it's critical for the military to provide individuals the first line military person was the provost marshal at that time rose miller she decided again what for security arrangements would be for this institution decided who would be there or how many cards there would be sometimes in fact most frequently the guards or d o d s civilian guards but sometimes she would assign m p s to be at this installation as well because for one had to get use permit but in practice the public office access the facility and i think that's the same situation we had at the wine army rec center civilians in order to stay there had to get a permit the public was allowed to walk through whether or not the public stayed within you know the sidewalk that went right to the beach no one knows and there's nothing in the record that shows that there was a sampling to see how many of the public straight from that area we simply don't know what is in the record is a history of criminal activity that seems to demonstrate that activity takes place in prohibited areas regardless of whether or not there's a sign posted and councils reference to the sun once again showing please give us a fairy's bar on policy regardless of the practice and i think that's an unjust argument as far as military morale civilians are allowed to stay there in civilian stay there it doesn't serve a military purpose that doesn't benefit the military i think it's possible to recreate without exercising a military purpose there's no military nexus necessarily tween recreating on the weekends i think that's a policy statement and it serves their purpose to write policies th but in practice if you go down and you ask a military member are you recreating so that you can improve your morale an event you go to war i don't think you're going to get a yes answer from these gentlemen or from these women also when it comes to military matters coun used a phrase core military decisions which we touched upon in our brief and the point that i made in the brief is that what makes a judgment or decision a mill terry judgment military decision i don't believe that every decision or judgment made by a person wearing military on that range is a core military decision and the decisions that we are questioning in our lawsuit were primarily applied by civilians in this case you know  or lieutenant colonel miller or the installation commander these people were way above him there's no there's no fear on the part of the courts that they are going to somehow second guess a relationship between those individuals there was