sovereign immunity for two thousand and six text messages blast sent individuals who did not provide prior suppressed consent to receive the district court summary judgment order below was confined determination of whether defendants entitle to divert the sovereign immunity there's no real dispute asleep or boil and the unity under either standard has only been provided to government contractors who follow the government's directives and carry out specifications and requirements of the government under either standard of a government contractor exercising its own discretion in a manner giving rise to torture is not immune from liability and likewise under either standard a government contractor is not immune from liability if its own actions and decisions fail to comply with the authority given to it by the government to claim unity immunity including this court and in my years including the four circuits very very very recent opinion in re cape yard in a more extreme case and i me work backwards to find out where the line is drawn suppose the navy set out intentionally to send text to anybody they get their numbers for maybe they didn't even bother with the age limitation and with intent instructed its marketing consultants that agency whoever else goes and this text to everybody you can the navy's premise would be that it's immune somehow and the navy is immune but in that s to work back in such a case if the the nexus if the basis that gave rise to tort liability in this case the choice of to whom to send a message if that was with full knowledge of the navy saying you know send it to this list i don't want to miss anybody's over means i blanket the universe i'm black you're going to war here's a list of a hundred thousand people send it to it and they send it to it and it turns out that was you know a t c b a violation then then the contractor was simply carrying out the directors of the navy who was after sizing his discretion i believe that the contractor would probably be entitled to muni there likewise if the navy said we don't care what you do we don't care by the t c p a about p we're above the law do it anyhow oh you fully warned us about this thank you very much then there would probably be immunity but not only didn't that happen here that was the actual opposite of what happened here this way it wasn't an issue of whether the navy hadn't thought this through or or hadn't given any thought to whether one of the law violated came when he was contract with the navy specifically said that it may not violate any federal state federal statute when it when it conforms when it does its d why immunity wouldn't apply here because the question that should be decided is whether the navy directly exercise its discretion and directed an authorized its contractor campbell you will the conduct the campaign as it was actually conducted did they stick did they did they approve an authorized campbell he was to send the text messages in the way that they did to the people to whom they did the two they said it and the answer here is flat out no and that's the navy specifically saying under oath we would not have authorized this campaign had we know it would have been in violation of the t c p a we know but that's a slightly different question because if the navy is makes the decision to go forward i'm not sure that it's knowledge of whether or not it would be a violation of the statute for a private party to do that goes to the heart of me are you telling me that the contractor has an obligation to inform the navy as to what the law is suppose the navy just came in and said do it the contractor may know but doesn't say anything about you know that's not what the law permits private parties to do with the navy says do it wouldn't there be immunity anyway no your honor there would not be in fact the laws are very clear on this that that under the government contract immunity is applied in this circuit throughout the country when the contractor does have an obligation to inform the the navy of any risks or any warnings of what it is that it's going forward if the if the contractor is or should be aware that what the navy is doing could be illegal or would be in violation of of the t c p a they actually are obligated to to do to inform the navy of it and in this case it actually would have been important because again the navy testified we would demand that our contractors comply with the law that you could take action that would be illegal i mean what would happen if the navy that's not a contract with someone to produce a certain type of n that be where you would go if you were harmed by one of the vehicles as opposed to would you be allowed to go under in virtual to go in and file a claim absolutely in fact that's what  where's where the plaintiff went to the federal court and the court almost always says you are not immune to the extent the contractor was the one who was responsible and exercising discretion in what gave rise to the to opted into it to receive information from or about the navy and the navy testified that was very important they never would have authorized any campaign to be sent to people who didn't want it and in fact and they never would have authorized this campaign had they know  said that they approve this message or not the message they prove the campaign based entirely on the representations made to it by campbell was that they relied on campbell he was representation for the needy also you know he says that h those representations in proper and factual they would not have approved so if you look at what the record says one the navy testified that it relied on the representations being that the recipient its discretion and tells its contractor go ahead and design something and the contractor comes back and and says ok here's what it is and the navy says ok i'm bad is not the that is not enough to say that the government was exercising discretion with something without approval was said by the government itself to be based on false representations made to it and had it known the truth tested know the facts it absolutely went about the rise the messages it absolutely would not have allowed this to go  recent decision to make maryland the universal lections i would argue that the that cd is directly liable because of the so closely involved it shows mind that it contracted with my medics it said go ahead and send the messages to the people that you're going to send it to we don't even care we're not even asked this is in compliance with the navy's policy or anything like that it did drafted the copy of the message it decided when it would be sent we believe that it would be directly liable but if not we believe that there's ample issue of the of what the navy authorized and you know in direct if so there hasn't necessarily been full discovery below on that issue but we would argue that to the extent the records you know exist in this court this is interested in ruling on that and not sending it back and subsequently by the united states supreme court and boyle it is wrong test is the wrong test for three separate reasons this case does not involve the state claim this case does not involve the federal tort claims act and the discretionary function exception under the a and it does not involve a claim for wrongful death or personal injury because a product failed and let me explain those three reasons first boyle addressed a situation where he had a stake claim where applied it in the context of a negligence case in ackerson recently it's a case that has provided the underpinnings for many other different types of communities that have been recognised was the logic behind it if if the navy made them do it made your client do it i can understand it perhaps but in this case the argument is the navy didn't make your client do it the navy apparently disavows sending text messages to people that weren't on the so so why why should your client be immune well the test as did the contractor exceed the authority granted by the united states government and the reason why years the existence of because if the government would be immune for doing what was done right so it started with here is a proposal for a text messaging campaign and then it went to a communications plan and then to a media plan and then to a tactical plan and ultimately was presented to the navy and said here is the plan we we will implement on is exactly what we instructed mine maddux to do we have to be careful about what show if i tell you you know you can come to my party as long as you don't wear a black dress and you were a black dress you said when you said i c what you're saying is we did everything right we did what we were supposed to do we didn't do it we were authorized to do exactly what we did and there wasn't anything to keep us from doing what we did we did informed us that they had double consent for the recipients of these text messages and importantly after there were objections that were received after the initial blast was sent out the navy didn't say hey stop this campaign wait a minute you told us that these are people who consented and were getting objections shut it down they actually ratified the campaign they added opt out language and allowed the can for the campaign to continue i saw not only did they approve it before it was implemented they ratified it afterwards and again the age issue is completely irrelevant here the t c p a does not have a specific age requirement doesn't matter for twenty years or it's irrelevant with regard to liability but we're not talking about liability we're talking about immunity and if it were the case that the navy's authorization bill expressed are limited to those age groups and your client's action cause the sending of these text messages to people outside the authorized territory it seems to me it's exactly relevant that would be action beyond the authority beyond the instructions beyond the directions you've been given by the navy well the age didn't cause any harm in this case the knowledge that that's that's a liability issue that's an injury issue that's not an immunity issue you're here on immunity and you can't tell me look we're allowed to send people all over the world because it doesn't speak to the immunity of tweaks exactly to the immunity to speak to the court's point on this issue in the oil context when the court looks at whether somebody has immunity under the military contractor defense and an argument is made well you know they approved this part and so therefore we had authorization the court says well that's not the part that caused the harm that's not the part that is at issue and isn't controversy in this case the question is whether did you approve the part that actually injured or killed the individual pursuing a claim and so for example to use boyle for example the this was a helicopter case where the individual couldn't get out of the  escape hatch say for example that the government said we want to helicopter with eight jumpsuits and the contractor went ahead and built it with ten jumpsuits the fact that you decided it's authorization or ignored the specifications with respect to the jumpsuits would be irrelevant to whether it had immunity for designing the escape hatch in the way that injured the plaintiff her killed the plaintiff we need to focus on what the alleged harm is because immunity is keen to liability what are you e idea of extending the dish no liability when the agent was acting within the bounds of the constitutional right didn't make any sense here or here the government is not going to be compensating anyone for any violation of the t c years later actually didn't address the taking issue if you look at the last two paragraphs of your slate said we don't need to reach the takings issue in this case because regardless of whether the government is obligated to compensate and a claim can be filed but we're not going to address that issue today the contractor is entitled to me and any regardless of how the taking issue is resolved so years lee contemplated the possibility that issue that was very much litigated in the eighth circuit and was presented to the court in the briefs before the united states supreme court and the court said whether or not there is a takings violation that has to be compensated we nuanced area because the court has to take into consideration the government's interest in doing its work with the with the assistance of experts and balance that against the risk than an injured party is going to end up without a remedy and in most of these file cases people who have  reason why discretion is not if she issued with respect to the years lee analysis is because if there is no and discretion being exercised by the government there is no exception to the f e c a and the government doesn't have immunity and if the government doesn't have immunity you can't have to have an immunity that is why that is such a key area of inquiry with respect to the boil case law george i wanted to answer your question with respect to the statutory issue if i might but i don't know if that addressed your question on your recruitment needs which is why this contract is well the g a o report there's no evidence on the record as to how that was prepared to prepared what analysis was done what i can tell you is that the base contract which was signed between the the navy retains control of the navy the commander of the navy recruiting command can train so retains control over all deliverables all deliverables on a contract had to be approved and that was consistent with the testimony of the navy's thirty six witness lead buck that that actually rolls us over into the statutory issue can we be liable for the transmission of a message that we didn't actually send ourselves and there are really only two forms of liability that would apply in this case and that both of those were discussed in the twenty third may two thousand and thirteen f c c order that council referenced the first one is direct liability and that doesn't apply we clearly did not initiate or send the act messages themselves and while counsel has pointed to the universal elections case i think he said it was this court's case but it's actually a district of maryland case from two thousand and eleven in that case the pardon the defendants actually uploaded the message and the list of phone numbers themselves and just somebody else hit send but they actually did the bulk of the transmission themselves they decided what the numbers were that were going to be called so that case is just not on point the other possibility of liability for the actual transmission of the message would be vicarious liability and again the f c c is twenty thirteen orders very instructive on this point it limited vicarious liability to where a indicate that while the seller does not generally initiate calls made through a third party telemarketer within the meaning of the t c p a it may nevertheless be held vicariously liable under common law principles of agency for violations of the t c p a that are committed by third party telemarketers what's