against the plaintiffs to coerce them into accepting e p a s jurisdiction that it had no such jurisdiction and the district court nevertheless concluded that plaintiffs claims rest on a discretionary decision to prosecute and therefore are barred by the discretionary function exception to the federal tort claims act the district court got it wrong on both counts st our complaint focuses not on the conduct of the prosecutors but on the conduct of the e p a nd as the government and the district court both concede the discretionary function exception does not apply to unconstitutional or unlawful decisions and the e p a s decision to pursue criminal charges against the plaintiffs here was unquestionably unconstitutional and unlawful how can we say that with such certainty the supreme court has long held that it is unconstitutional to indict a u s citizen if persons of common intelligence must necessarily guess at the laws meaning and differ as to its application and that is precisely what happened in re jurisdiction over land like plaintiffs land having agreed on that they were then unable to agree on a clear interpretive standard to replace the e p a is over reaching one in other words these persons of uncommon intelligence were left to differ as to the laws application no statute or judicial decision has altered the supreme court's rejection of the e p a s jurisdiction over land like plaintiffs land it could not have been clear to anyone that the e p a had jurisdiction over plaintiff's land and because the e p a s assertion of criminal jurisdiction over that land lacked the clear statutory authority that is required by constitutional due process the discretionary function exception cannot apply and the district court's decision must be reversed it looks like a pause there to calibrate to do you any questions for instinctually in which we all had perfectly good reasons whether ultimately it is constitutional or not to believe that they could and they were meeting both elements of b the question is has it been applied to these facts the same facts and as in reponse the same facts that are present here how did been applied to these facts in a way that renders clarity as to the jurisdiction of the e p a under the clean water act over this type of land and the answer to that is no it has not in reponse the supreme court said the e p a doesn't have jurisdiction over this type of land that is the state there is a long standing due process standard that says that you cannot bring criminal action against a u s citizen unless it's clear that what they're doing clear in advance that what they're doing is a crime here when the supreme court was presented with the question is this a crime they said well in this case the e p a didn't have jurisdiction but we can't really tell if it's a crime because we disagree as to how to answer that question and that is squarely within the due process analysis that the supreme court in one year in f c c versus fox has repeatedly established and when you take that lack of clarity and that lack of due process and you apply that to the two thousand six hundred and eighty a discretionary function exception you are confronted immediately with the cases the raft of cases that say and no one has disputed this you don't have discretion no government official has discretion to violate someone's due process to break the law to exceed their authority to act in an unconstitutional manner and because the e p a s off already in this case was at best unclear and at worst had been completely rejected by the u s supreme court it cannot be that it was constitutional to bring an indictment against the plaintiffs for doing something that was not clearly a crime hopefully that explains the way in which we feel repond of supplies that because it's unconstitutionally vague any officer that the term attempts to enforce a statute is committing a constitutional tort which is for many that's remarkable i mean i've never heard of this before this is  absolutely not however just because a statute is not unconstitutionally vague doesn't mean that in every case it can be applied criminally now we're not suggesting here anything other than that to bring an  with the lack of clarity that exists as to the specific facts we're in a very unique situation here because the precise facts that appeared in reponse appear here and so there is no guesswork there is no discretion the supreme jurisdiction in the civil action as we are doing if the e p a agent makes a decision to exercise jurisdiction it has been told it doesn't have because the  has addressed the question of whether the clean water act applies to land that occasionally has standing water is located near ditches ditches that flow eventually into traditionally navigable waters that are themselves miles away else but the e p a agents did not have discretion to say to the prosecutors or anyone else we have criminal jurisdiction over this land because to the extent that there was any guidance on that issue the application of that law to those specific fact it was the supreme court saying the e p a is wrong we can agree on how to figure out exactly what the right answer would be in every situation but here the e p a is wrong and knowing that the e p a could not possibly have been exercising its discretion to say notwithstanding what the supreme court said reponse notwithstanding that lack of clarity we're going to bring criminal charges against them honor may it please the court my name is charles jacobs from the u s attorney's office for the united states and its core this case challenges government decision to prosecute and the f t c a is clear and whether exceptions that  do not waive sovereign immunity and one of those exceptions is a discretionary function exception and which under which quintessential decision such a decision whether to prosecute are immune from suit on the e p a it is actually the prosecutor's duty and his or hers alone to determine whether to present charges on any given legal theory as applied to the relevant facts so where as here the purported harm actually flows from a prosecutor's exercise  discretion any attempt to cast an action as something else might fail similarly plaintiff's conclusory claims regarding and theories regarding the alleged unconstitutionality of the prosecution's likewise fail scientists do not identify a single legal authority holding that the relevant provisions of the clean water act have ever been held unconstitutionally vague as applied to any criminal defendants property let alone land like this nor the plaintiffs attempt to distinguish any of the cases that have rejected such challenges by other criminal defendants and one point to add on a drop and i was here as the as the question suggested none of the judges none of the justices on the supreme court and the rock  decision concluded that the united states could never established jurisdiction over over wetlands under the clean water act and they had all agreed that there was that the government could do so they just merely disagreed on the standard that might apply so in other words there the justices set forth a lead least common denominator by which the e p a and u s attorneys offices across the country could determine whether and how to exercise their discretion  you have one more minute thank you and enforcing the clean water act that's the crux of scientists complaint arise from all from policy decisions about whom when and how to investigate or prosecute and such claims are all barred by the discretionary function  exception this court may also affirm the district court decision on alternative grounds not reached by district court as well for example plaintiff claims are barred by the f t c as intentional tort exception that exception bars certain intentional tort claims and  those arising from the same unless the torts are based on the acts of law enforcement officers here the complaint includes no specific allegations at all concerning any acts by e p a law enforcement officers that are purportedly responsible for the torts in question allegation in the complaint that asserts that there was a misrepresentation as to the nature character of the property is there any such allegation by by e p a agent to the prosecutors that the time of the  regarding the land in question ok thank you all right i have no questions or anything else you like the famous jacob no thank you for your time all right mr smith you have two minutes  prior judicial decision that makes it sufficiently clear now here the only prior judicial decision that reads on the specific facts is repond us no other court none of the courts that have of since that none of the other courts that have rejected a constitutional challenge have looked at this kind of land and the only precedent the only statute the only regulation the only judicial and nd of all the relief was a remand to the district court to reconsider in light of the course decision so it wasn't a clear determination that the army corps was wrong with the discussion of the army the characterization of what it thought were navigable waters and there was also discussion with regard to particular particular the army corps of engineers and its responsibilities i think you're significantly mischaracteriz in light of the definition that the court had worked out there was no finding that you keep saying that proposal stands for the clear determination that lands like your clients were not wetlands that's not the case  most recently in reponse house and it is the citation we considered whether a wetland not adjacent to navigable in fact waters fell within the scope of the act our answer was no but no one rationale commanded of