it's number fourteen day six two zero seven craig atkinson at over says jacobson generic group inc oral argument not to exceed fifteen minutes per side james could well scott and joshua bond for the we've been presented with facts that go beyond mere negligence in many of the allegations that we've made to where we've all ij intentional conduct violated completely truly independent contractor that was given complete power to oversee a project and to protect under the corrective action plan that was designated by the tennessee department of environment and conservation and a duty and responsibility to protect the workers they're working within the confines of the cyber mediation area and in doing in committing the actions that would were submitted in the affidavits to the district court and the allegations of retaliation for refusal to allow respiratory protection refusal to allow dust mask refusal to allow proper protective equipment the directives of the agency involved were violated the rights of the workers were violated as a matter of public policy you have to show that there was a violation of those regulations in order for you to recover  what the standard i believe it is is whether or not the directives allow for a choice and then if they do allow for choice you fall back on whether there are directives in that mandate a course of action or as a matter of public policy was the actor in this case mr welborn client jacobs engineering acting in furtherance of public policy and we are respectfully submitting based upon the contract and what they were instructed to do that when people are claiming that they are injured and they are directed to protect their safety and with regard to the affidavits that were submitted or requesting dust mask so just to make sure i'm sure history i'm grasping this first argument what you seem to be saying is an argument that would would have made t v a liable if t v a had done all of this in other words had there been no independent contract to do this but it had been only t v employees that it cleaned up this ashville which just to make sure my understanding are you making an argument i know that's not th case are you making an argument that had there to spend done by t v employees t v a could have been sued for their conduct i'm just curious what the answer to that i'll give you a give you an answer in regards to that and in doing so i want to go back to the maze case which was the case involved was is the answer yes or no and that is just yes sir so in other words the first argument i'm making is one that would make them liable if they are liable you're saying move on of course should an independent contractor be liable in this because you don't fit under discussion a function or any other exceptions are ways we characterize that in this particular situation we're presented with with the facts that t v a did not engage in this conduct that was a virgin or complaint that i think of the bird should i know but we're i'm now this was a thing it's as if jacobs engineering are all employees of t v s and i thought you were trying to make the point that there were sufficiently clear directives here that even if t v a had done all of this denying the respirator here giving it there they would have been liable and i was not trying to make that again what's the answer to the point the answer is the point is if jacobs engineering did not exist and t v employees did every single thing alleged here could t v a be sued or not yes they could yes they could and that's because that's because the maze case and it goes back to gobert it goes back to tell me they just tell me the principle the principle would be when people are seeking help for their safety in a circle of remediation side given the facts that are presented this court where you have supervisors alleging that they're going to be hanging themselves with their own genitalia if they were to wear dust mask they will be fired if they were just mas protect themselves from toxic constituents that they're working on middle and that that violates public policy when ever you have an environmental cleanup issue i'm sure gun isn't the safety plan as to how you do the environmental cleanup going to be really important and involve an awful lot of discretion because that's the whole game how do we do this in a safe way the safety plan is of the utmost importance and that's where you go back i think to the room remained the case that was used in the maze case that allowed for recovery for the property owners in the t over the t v s bill and that is where when government undertakes a duty in that particular case to publish navigational charts that dealt with being able to enable people to navigate the river safely and they did they negligently omit the hazards in those rivers they found that that the government there was liable here we're not dealing truly with negligent conduct we're dealing with intentional conduct that not only was in violation of what they were supposed to do with my clients which were the workers they violated the directives of t v a as a matter of contract in this contract it's submitted before the court t v a gave specific directives to protect the workers to follow all laws regulations and directives and they didn't and we're submitting and we go on to talk about how in i believe it's in paragraph fifty sixty three fifty eight they altered air monitoring results in the case that they sided believe it's  rosebush case how this is distinguishable from manhattan in the rosebush cases where they put forth are they there was an absence of railings in the in the public parks and there's four fire pit yeah the fire pits what they did here is so plant had permissible exposure limits right it was sad yes but when you take those permissible exposure limits away by altering the air monitoring results is we have alleged in both complaint and i believe affidavit and believe our allegations will be taken as true but you are the the arbiters of the burden here when they take the monitoring accuracy away they eradicate the whole purpose  management of that side why there was a separate one on tractor what in the safe nk perform the industrial hygiene monitoring right in part in part our allegations are that ja bs engaged in that the affidavits support that they altered the air monitoring results and altered the method and manner in which the air was collected and by doing so people were injured and i believe under the shalala case that those facts and allegations are to be taken as true as supposedly jacobs up the site actual levels for flyers consisten i think those facts into the burden are to be taken as is true and i did paragraph fifty eight of your complaint which was yes or yes or and i think in the opinion there are certain things i feel a film a somewhat a level of guilt attacking the opinion because i throughout with allegations of breaches of duty to t v and to my clients that violate public policy and there's a public policy interest where these people should have access to the courts because if the court system is not there to protect the oversight of complete independent government contracting when t v a trust them to manage the site for the benefit of the public and to my clients decision yeah i am familiar with the board cision face say one looks at this case through that prism how how how do you do under that test how do you or maybe just more designs in the military and in engaging environmental remediation what you had was negligent actors acting in good faith in adherence with public policy and those just contained negligence in this in this particular instance the allegations are significantly more severe so severe that i made them with trepidation i have made allegations like this i don't think since i was a prosecutor for sixteen years ago i think that's how they're distinguishable dish on the so you get outside boyle by just saying it's more of an intentional tort reckless once you do that here i don't i don't think you do that so bust saying it i think you do so under the standard which the allegations are to be taken as is true and in this particular case we have these allegations and under this will be one standard we also submitted affidavit in support of those allegations that are to be takers true but if you look at look at it in reality we've also given the court and gave the district court proof of the truth  don please the court joe will mourn on behalf of appellate jacobs engineering group your honors this case is a case that presents issues that have have been decided by the united states supreme court by the fifth circuit by the ninth circuit this is this is a case where these courts have addressed these very similar issues to deal with a federal government governmental agency that contracts with a private contractor to perform a in look at it and under served were mandated t v you've got to clean this this mess up t v a then contract with my client to in effect create a safety plan to just do such work and  you know argue that everything that's done pursuant to that plan is immune from suit or do you well i do i don't know let's say that pursuant to that plan you drive down the street to pick up some gas masks and you drive too fast and hurt somebody that's presented to the plan as it is and you would say there's no liability there under the discretionary function to no i would not want to know you've just contradicted well i have i would tell you it's just not that easy you have to draw a line and say well driving too fast is just not something that the plan permitted it didn't forbid it but it didn't prohibit it it's just something that's not it's not going to undermine the carrying out of the plan to say that when you're making choices when you're carrying out the plan you can't be negligent you would agree with i would agree with that your whole if that's true why don't at least some of their allegations fit within them because it seems like at least some of them are not things that the plan affirmatively permits but rather give some choice whenever you carry out any plan you're going to exercise some choice what street to go down how fast to drive you know whether to take off or lunch right you can't have regulations for all of that but some of that's got to be recoverable underneath legend's right you're right your honor so what's the biggest not really helping us to say oh if they're carrying out the plan the under discretionary function well you're on track to raw ability or whatever you want to call it in this case though your honor i believe that the record before this court establishes at length that every action which they complained that jacobs was conducting that conduct in accordance with the plan well that if they were covering up and altering the actual monitoring result you want i'd like to address that because the allegations that are in the complaint and in the record before this case they phrase it in a vague improper air monitoring i've never seen this allegation of altering the air monitoring results in this record until this appeal was filed that's not in paragraph fifty i do not believe it is your honor i do not i believe that it says the jacobson gauge intentional improper air monitoring does not say anything about altering or changing air monitoring it says they engaged in improper air monitoring but then it doesn't even go virt how did they improperly air monitor we've put forth proof your honour's did suggest and it's undisputed they have not come forward then you haven't is to dispute it the jacobs conducted the air monitoring in accordance with the plan that they prepared then t v a and the e p a approved there's lengths and lengths of affidavit testimony explaining how their monitoring was done how it was consistent with the plan what the results were thirteen hundred results that were consistent and matched what the other company which you judge gillman into indicator there in say were consistent with so the record is what i want to follow on a stick to this question you said everything that's done pursuant to the plan is discretionary if i said that your honor i misspoke what did you say everything that's done pursuant to this plan is everything that involves choice in terms of how to address safety is discretionary it involves considering  that that's true but the underlying difficulty is to preserve the decisions that the agency imposes on the on the contractor so if the agency says you can do this and you don't have to do this then you ought to be able to do this and not do that and not worry that they're going to second guess that decision by suing you i'm not sure that every one of the kinds of challenges they're making is subject to that kind of concern well instance saying you can't wear this may i ask is is is not being able to wear the mask something that's required by the plan the plan requires the plan your honor drivers requires that states that mass are not necessary but stating that they're not necessary doesn't mean that it's within that it's inconsistent with the plan to permit them well your honor the plan does have a provision concerning voluntary use of respirators that if ol oed some of the planets did follow it and they were allowed to use respirators there were certain now about allowing and demanding but i'm talking about their allegation that it was precluded it seems to me you have to say and maybe you can i'm not saying you can't it just seems to me that you're asking us to set a standard which is too broad the standard would have to be something like is the action of you something that the agency has legitimately decided you shouldn't do not something that the agency has decided is up to you because of the agency has decided it's up to you and then you were careless or violating somebody nay nay which in standard they ought to be able to recover against you unless it's something where you said you know you should you only have so much money we only want you to spend it on fifteen guess mass and on thirty right then you could say well if you are now being required to buy that sixteenth mask you're violating the obligations under your guidance from the agency but if it says you have to buy at least fifteen and the rest is up to you and then you make that rest decision in a way that violates the negligent standard to some injured person i don't see how the fact that the agency gave you that choice it's not interfering with the agency's policy decisions i'm having trouble seeing how that should be covered by the contractor immunity i'm going to try my best to that's my question or swayed you well with respect to the respirators there allegation is that jacobs violated federal law by not providing them respiratory respirators for use at this site they've contended that doctors gave them prescriptions to use these respirators and in jacob's response to that is by the way i thought they said federal and state law maryland state law sorry what jacobs is saying in response to that is is that the plan has provisions dealing with personal protective equipment the plan which was approved by the t p a t v provides that personal protective equipment is not is not necessary it is not needed on this site unless it gets to the point where these permissible exposure limits are over these changes with the plan to allow it yes and here's why it is it is fair i'm ok with that if that's what if that's what the record relied on is that it's inconsistent with the plan to permit what they're asking for and that would be immune under it plain that it is and i'll explain to you why because that's why there's the whole provision concerning the voluntary use  and then having to having these these points go through various steps to make sure that they they are creating other hazards by wearing respirators out on the site when you're doing work out in a dust field it's ninety five degrees a nice ten c with people that may not have the greatest health conditions in the world bring a respirator they could then cause something going back to what you're talking about of someone driving in a car accident they could take and run over somebody because there is that little sense that the district court went through for all of these allegations seems to me that's what that this record would have to find in order to find contract i mean i believe the district court did fine for all of those things as for on i do this to make a difference if this is what if we don't think this is a subject matter jurisdiction issue in other words there's an easy part of that which is ok find twelve b one twelve b six if it still fails to state a claim who cares but if if you don't think it's subject matter jurisdiction does that suggest that some of these inquiries some of your back and forth which  might want to require a little fact development i don't not think so at first but i think this is a subject matter jurisdiction issue any base book just something i question was i'd rather you didn't go down that road you have a hard time persuading me on that one for what it's worth trying to deal with my question on the assumptions not subject manager stiction well on the assumption that is not subject managers jurisdiction and this court was given the district court was given the ability to look at this evidence and to basically conclude as it did that the facts presented showed that there had been no exceeding authority of the contract between t v and jake ups and that the contract was badly do because all the conduct that they allege is at issue that they were damaged by this so this harmful conduct is conduct which the district court has already ruled and which i think that the other cases support is discretionary conduct it involves cleaning up a hazardous waste site and the statute concerning and when this is site in our breeds says that that conduct is discretionary government function conduct removal and cleanup o hazardous coal ash bill like this is discretionary function conduct and is then subject to discretionary function immunity so my position is that t v a would be immune if they were the target defendant here but they're not i'd also like to just address some arguments that appellant's council made concerning jacobs violated the contract violated statutes violated this violated that there's a lot of allegations but there's no basis for those allegations there's no proof in the pudding they they keep alleging you violated this you violated that you violate this but they don't go for within the analysis of these directives mandatory or not we  submit to your honor's that none of them are mandatory they are all out an element of choice on the part of jacobs were violated and we have thoroughly briefed this issue and pointed out each one of these potential statutes that they claim that jacob violated are not mandatory they're in fact subject to discretion on the part of the person that's implementing but if we think about this case through the lens of boiled you know that case you're on so that's that seems like a different way of thinking about it it's not sovereign immunity it's kind of an obstacle preemption type thing which is pretty ineffable and hard to figure out why is it wiser obstacle preemption here with allowing the employees mean i soon you would agree if you fired somebody improperly under your client fired somebody improperly under state law they could sue their right yes it's discretionary to fire somebody but it's you would say well the discretion of the relate to the safety plan but so we know that you can see we know even though it's the federal government federal contractors you can enforce state law we know that's allowed and oil doesn't get in the way of that so how is that obstacle preemption here  boil as is actually supporting our our position in this case and here's why i view boyle as a case where the united states supreme court looked at this balance of balancing between state tort liability and allowing a plaintiff to recover for state tort negligence or i would say also purposeful conduct is they want to ledge against this very important federal interest in allowing the federal government to be able to contract with private parties like my client jacobs to accomplish very necessary things in this case cleaning up a bad way side with coal ash all over the place and that you've got to balance those and there are i think when you look at that case it supports it because public policy is served by having jacobs come in and develop the site plan clean up this site consistent with that plan which we submitted did and that outweighs any tort claim that these plaintiffs have if you would if you're driving away in a truck that has a hole in it and some of the ash gets out cause injury and say there's nothing in the plan that deals with  you would say there's discretionary function i would not you would not i would say that all that would safety it deals with safety and pollution by coal ash and all that well it's just it's i mean it makes sense to me that it would not but i'm having trouble i can tell that reconciles with every one of the numerous things that they they argue well like my response that your honor briefly would be that i'm not aware of any provision in the site wide safety health plan or any contract at issue that would permit so as the absence of something which from an early permits the whole correct just really really could question it hopefully yes or no when you when you think through all the you know whether it's the sovereign immunity good morning your honor josh bond from hodges daddy of course in knoxville and i needed to follow up with the issue of retaliation because my clients haven't thompson sean smith filed a motion to me  testosterone levels and requesting for safety equipment including that of respirators the trop or tilled that the amendment was futile because neither mr thompson or mr allege that they were employed by jacobs and that is me did you file a separate brief on this issue i did not your honor because after reading the the cases from judge garland sided about the situ element on retaliatory discharge i scratch my head and said if he's pointed out this issue in the briefs it is not your own you just raising a new issue now in rebuttal in oral argument it hasn't been raised if existed it's fifty ca fifty days six days one one three extends workers compensation benefits to a principal or general contractor for injuries sustained by employees of a sub contractor when the principal or general exercises control over the subcontractor and that is that issue it's a stratton case is talked about it's six ninety five southwest second and forty seven  in my mind because of that statute if you do not have to have the essential element of retaliation of an employee being employed by that particular defendant you have any arguments that respond to the arguments that were made today i do your honor i would say i would submit there the cases cited by the absolute dealing with the difference between intentional vs non intentional conduct that in this particular matter we have alleged intentional conduct and i think that intentional conduct that was outside of the discretionary immunity that  is discretionary and that is different from negligent conduct and that of where one would have a choice to act whether you be the sovereign or whether you be the sovereign contracting i