thank you may it please the court my name is brian ramel from pocatello idaho i represent to sherman anderson who was the plaintiff appellant who if you accept his version of the facts is true was fired as a result of a false positive drug test administered by thompson creek mining company which they should have known or reasonably should have known was false or mistaken that's not the way this case was that with below i understand so what am i supposed to do with that well yeah i think that the way i did try to deal with this on appeal is the lower court made a factually termination that should be left to the jury when it held that the acted not apply because thompson creek received unemployment benefits and failed to properly comply with the act in other words the district court concluded that they elected to forego the benefits of the act necessarily then the court made a factually terminations which would incorporate this concept the only thing the district court did is the district court said you don't have to comply with the act and because you don't have to comply with the act then there's no way to bring a cause of action for failure to comply so you can bring your cause of action and the employer who doesn't get the benefit of having complied with the act doesn't get to use the of defense to get out from under it but you can't really bring the cause of action for failure to comply in other words you can bring your cause of action but the act has nothing to do with it and the employer cannot bring the act as an affirmative defense to get out from under your cause of action that's what i think the district courts and that's not the way i read what the district well i guess i'm having a tough time understanding why it doesn't say that he said as a matter of law compliance with the act is voluntary the you don't have a right to maintain a cause of action for not complying with it and therefore guess what if you want to get some unemployment benefits or whatever you're going to get or whatever you can get outside of the act they can use the act as an affirmative defense the lower court did not view it as an affirmative defense type of a situation well i don't know how you could read it what he says is compliance with the act is voluntary compliance reaps benefits without compliance the employer must show that he's entitled to common law remedies which means without that at that point he has no affirmative defense he's only got a common law remedy the problem with that is there are no common law remedies because an employer for example owes no duty to an employee to properly conduct a drug test so what you're saying is which is where i want to lead you a little bit if we don't have any any act to comply with then we're back to the common law which is your employer he that you represent is under idaho law nothing more then and that will employee who can be fired for anything unless there are exceptions outlined under ca under the common law which i didn't find any exceptions either so of course it was a brilliant and resourceful braun who's trying to make an exception with the act but again i'm having a tough time understanding why the act applies because the act itself says that it applies or does not it says it's  it's voluntary but once and that's where the factual question comes in because it may be voluntary but once a person voluntarily elects to participate in a process then they must be b by that voluntary process you know course they're bound to those to the degree that it's voluntary but it's what one is bound mean i mean i'm following through the process but one of the consequences i don't see in the statute that says well the consequences for not following through precisely is that all of a sudden there's a cause of action against you that's that's where my problem is but i think it does your honor for example seventeen one eleven provides specifically for a cause of action to read it the way that the district court read it and the way that this court suggested or the way that your honor suggests would mean that that language was meaningless and that's not the but that's the kind that's the cause of action i want to point to but that's not the cause of action you presented to the district court and if you're go a different case for example you can look at the excerpt of the record it nine zero zero nine which is the memorandum in response to the motion for summary judgment where the defendant understood fully full well that we were discussing and addressing  you added the argument under section seventy two seventeen eleven on the motion to reconsider and a motion to amend and you lost  you didn't appeal i think judge that it still gets i know if you don't appeal a motion to amend it don't appeal the award of attorney's fees i can't go there so there  mean all of those good arguments you may make he denied and you didn't appeal from my perspective the view point was that the court made a factual determination first that affected it's ultimately decision on how it applied the statute i understand what this court is saying and i get it but the problem is that before the district court to get to that level it wasn't allowed to make that factually terminations and from my perspective that there was a of what thompson creek mining companies elected to do and that's the problem we don't get to the point that this is talking about in terms of other things that the statute does when the district court first starts with the prospect and what he relies on is the conclusion that thompson creek mining elected and chose to engage in certain things for example they eat the district court states that they eat elected not to comply with the act that's not true and it's a factual issue let me ask you a second point did your client receive unemployment test positive and filed and will constitute misconduct as provided thus resulting in the denial of the unemployment benefits so therefore under seventy two seventeen zero six if you got anything you got what it suggests you're going to get the benefits which you wouldn't got otherwise but that's only one part of it your honor seventy seventy six subsection two also requires that if he retest and  retest terms is determined to be negative that the employee shall be reinstated with back pay those two things can't be read consistent with each other if we're going to say that the act means nothing all right and so  it has to has to mean something and the real dispute here your honour's is that the inference is that the court reaches off of the statute are all in favor of the defendant not stand i think that the the problem that i have with that is that the district court said that the reason the statute didn't apply was because of thompson creek mining choices w choice or what the inferences off of those choices would be a question for a jury what did they intend to do did they intend to be bound by the act what for example is judgment to judge smith asked  did the did the plaintiff receive the unemployment benefits yes but that doesn't mean you know full well that a that an employer cannot challenge unemployment benefits for a multitude of reasons not simply because it intends to not be bound by the act but that's what the court held council let me just give you my one question that has me hung up how how can a hive imply cause of action the voluntary component begins at the time that the company he lacks to participate in the program perhaps the greatest benefit that an employer receives by the statute is that they're now allowed to test an employee without reasonable cause i suppose that means probable cause as a result of that at that point the employer is in your state that that's true that once someone ventures down the path of following the statues it becomes mandatory not necessarily in terms of a specific statute but as a matter of common law once any individual undertakes a an act whether it's by statute or otherwise they have to compare form that act case on point that doesn't help you i had felt like that that case was distinct distinguishable and not a political once again i had felt and perhaps incorrectly so if the court feels to the contrary but i felt that it is pretty fundamental jurisprudence that once a person undertakes an act once they opt in to a the benefits of a program that they didn't are bound by that and i don't see the contrary like the hotel california principle you can check in any time you want but you can never leave once you check in your balance by the terms of the contract and accept it and that is what i believe happened here i just i recognize that the statute creates of conundrums the voluntary language however my focus would be that when you come to the voluntary language relevant currently the mine is mot bald and not in operation but still in existence all the corporate statements made in our briefs are accurate  my argument basically is that which i've heard all of you just you judges question this ramil about it is undisputed that thompson creek mining company was a private employer that anderson was an at will employee that when he was hired mr anderson consented to tom's increased drug testing policy and this policy provided for post offer drug testing and then random testing and there's no requirement that that under any law constitutional or whatever that private employers have to have probable cause for drug testing they they if they can set forth the terms of their employment however they want to and if the employer agrees to it by taking the pay they they take the pay there's no dispute that on twelve sixteen zero nine the selection of and several other employees was random and i mention that because the second count of the complaint that was before the district court and therefore before this court implies somehow that the selection of mr  discriminatory because he was going to be entitled to some retirement pay in about thirty three days and the fact is there's no evidence that his selection that day was discriminatory that it was anything but random there is no dispute in the record that the employee eat who took the hair samples from all the riyadh i'm lisa elected employees on twelve sixteen was certified and had been trained and was certified by psych medics initial screening was positive for the presence of t h c and there's no dispute that the only gold standard test which was think this is necessarily going to make your client lose the one thing about this case that upsets me or bothers me a little bit is there on retesting he gets in a national result of no drug and then the samples used up so they can continue the testing and then at least puts a doubt in my mind as to whether the initial test was right well you know your honor the the test the screening test that mr anderson had done was on hair that was taken on january scuse me february now it's january twenty sixth of twenty ten but the idea is to test for used to say in hair taken twelve sixteen particularly when you're dealing with metabolites which are which  leave the body after a certain point in time now i may be up against the limitations of my knowledge that happens a lot but my sense is that the reason you test here is that in the here there is preserved evidence of prior drug use yes so you test here rather than blood because it comes out of the blood pretty fast but it sticks around in the hair now is that right so how that works yes or so why can't they take another snip of his hair that should have produced exactly the same thing is the first half of the hair because it's in the hair is not something that sort of disappears once the kidneys are sort of filtered it out is in the hair right well just understanding something about the test  no your honor it did the i don't think it's in the record before this court but the t h c will last in the hair for about thirty days so if you smoke he had that test done on that second set a hair on once that was stated and once there the initial screening test came back as negative for the presence of t h c but that sample of hair taken by chalis medical center there wasn't enough left of that sample of hair to do the further testing that and that m s g thing i'm not sure this is legally relevant because the whole that's a different problem for him because i'm not sure it's probably in front of the district court and therefore yes your honor i would submit the twelve the seventeen eleven argument you refer to is not properly for the court and as just smith said is there's no dispute that the employer wanted to keep anderson his boss liked him he was a good employee but what they were faced with was there was enough left of his sample from that they had taken there was enough left of it for there was enough of the sample they took to do the initial test and the confirmatory m s g g c test there was not enough of that to hear that mr anderson had taken at the challenge clinic to do the second confirmatory test or so it's not in the record and i don't know whether that's a function of mr anderson's hair  or whatever i mean you know who knows it's that total speculation and there's no dispute that that  and there's no dispute the thompson creek mining company realized that ok it had not complied with the full action yes i believe he did your honor because all the details of these testing and religious detail right and all the statute does is if you comply with the with the provisions the statute rebuttable presumption and it it allows the employer certain benefits such as you don't have to play pay unemployment benefits you can sign up her trucking contract with the state and your insurance premiums are lowered and there's no evidence in the record that the insurance premiums were lowered or that had any contracts with the states the only affirmative evidence is that up third advantage families don't have to pay unemployment was not taken advantage of by thompson creek they paid unemployment they did not contest is application for unemployment when they terminated him counsel if i can ask the question please the drug testing policy overall may or may not have complied with the act that was not in the record but in this instance it did not sense it did not it simply had a non qualified drug testing policy which was agreed to by an employer it will and the drug testing policy what basically take away all the stuff related acts that if you test positive for the presence of drugs we're going to have terminate you because we're a mining company and it's dangerous to have people out here who are on drugs and yet their tires are as big as th ceiling on some of those tractors out there and so you just take it as a common law implement practice and we're going to terminate you mr employ it will if you test positive then you're going to have to go undergo random tests and he said yes i agree i will do that and he he and others were chosen for random tests no evidence that he was picked out in particular for any reason and he tested positive and therefore they terminated him ok thank you thank you thank you any other questions i think not thank you thank you you save some time thank you real quickly if the question and at whether the statute is voluntary we cannot then reconcile the act itself with its own terms for example i realize that i'm not supposed to be asking the questions but i'll say it rhetorically because here's the problem how can an act provide a course and even a cause of action which they c exists in seventeen eleven by its own very terms if in the end the inquiry has to end at whether the act itself is voluntary that would create an irreconcilable conundrum and so the only way i believe that one can reconcile those two things is to then go back to the question was there voluntary compliance was there a choice made which i think the district court recognized by its decision in saying and concluding and finding that thompson creek in fact did did engage in certain acts that resulted in them being outside of the act you know i used to think that congress was the only legislative body that would draft confusing or internally consistent statutes i now realize that i know is capable of doing the same thing they are and i just think that fact cannot be read it's impossible and from my perspective i read it and i think you gift already but it's impossible to read that act as simply saying it's voluntary therefore it becomes meaningless because sevent and that part of the case comes up too late and i'm not sure you could have shown it in any event so don't feel too that i think you but the way i read that i understand that that's one possible interpretation of that statute but i think another possible interpretation is that within the confines of seventeen one eleven specifically that the only way you can bring a cause of action under that section of the act is to find that they knew or should have known about it but that is different from the seventeen zero six that specifically says they shall reinstate them with back pay and so i think that necessarily requires an act again although the very first clause or section says these are guidelines yes they do thank you i under a voluntary statute here the guidelines which which i guess gets me to the point where judge gold asked the question do they look like i'm over time go finish the thought in that well once they voluntarily engaged and got the benefits of that act there's no reason to believe they didn't think that the tax benefits the worker's comp benefits all those benefits you can they forwent those benefits there's no information in the record to suggest they didn't get those benefits and then to say they can both profit and avoid liability bothers me there's no private cause of action thank you think think both sides f