wherein he ruled that our claim for the loss of cattle was precluded by the the exception of under the federal tort claims act which fourteen exceptions will call it courts in exception that initially the government raised two exceptions one was the discretionary exception subsequently in also concurrently the the pointing exception the magistrate judge found that because the  the government employees were balland to follow the the regulations that they had adopted the guidelines is what we called them in our brief that there was no discretion and therefore they were precluded from availing themselves of that particular exception however the court then went on to look at the corteen exception and gave a broad interpretation to it we contend that it was  too broad and that it basically cuts us out the centrally the the effect of what the emit more does it makes the agency the judge jury and executioner of all of its activities there's judicial oh vigilance there's no mistreated vigilance there's just no vigilance in this case what happened was there was a chemical called corral which is a coup befalls which was developed in the  thirty s and germany and it's applied to the cattle to kill to it but on the label of the of cooma faucet says you shall not you shall use this only as directed and it it has  the directions regarding the frequency of application of this chemical to the cows and the potency of application and then so so you have that particular mandate of the exception because do you believe that congress would pass the law presuming that the agency would violate other federal laws in order to accomplish the objectives of its core team not only that you have guidelines which were mandatory on the government agency employees during the quarantine which they completely barly and those who watch or how that argument works i mean the whole point of sovereign immunity is big knowledge meant that you might have an action that is otherwise valid otherwise meritorious but nevertheless runs in a sop immunity sort of unity doesn't exist just to weed out bad claims and also we'll weed out good claims well the point we're trying to make is that if you're going to do something as a this if you look at the dublin case though in the us supreme court case which is saying there were thirteen exceptions to this to this rule to the statute thirteen of which is the word arising under the case law seems to paint a very broad deference to that of to that verb which then there's two other exceptions one is the it's called caused by and that's of the treasury exception and in this case the the in the corn tin exception now if you look at the rate case the regulation th circuit applied for the st time the word proximate cause and they talked about the approximate causation and so it took it a step further because the government was i mean the magistrate report basically said well it was it was imposed it was imposed and therefore it since it was impos that contemplated not only the decision to make the quarantine but also also the subsequent execution and management of the quantity what was so when you're you're focusing on the text of the statute in your saying here the the death of the cattle was not caused by the imposition of the quarantine room it wasn't it's imposition or or wasn't a quarantine because it was treatment and not isolating the cow what's what's the exact argument the exact argument th treatment than if you would have anticipated that in the compass the treatment prescribed by the agency which is follow the label and follow the guidelines the argument you're making is want to sort of an intervening cause defeats what otherwise would have been caused by approximately caused by reasonable forseeable so when the government decides to corral the cattle in and then they execute the code rel it's forseeable that they would do it without enough of it ventilation and that would normally give the government sovereign immunity under this but you're saying there was an intervening cause is the negligent non following of the label that's correct what's your best case because you're right argued that i think it's on page thirteen of your brief but you don't give us a case and they respond to that can find a case basically basically what we're trying to do is draw the analogy between the rape case which looked at the issue of proximate cause a sugar ray does give that example of though this would be incidental to a quarantine if someone were drunk driving but but you've agreed that the treatment isn't incidental the treatment was the whole purpose kill the tick the so it's the proper treatment it was the preprint purpose of the quarantine not the improper treatment of the of the cattle and just the improper establishment yes but it is this is a textile matter there's no proper or improper distinction in the tax it just says as long as your damages was caused by the establishment of a quarantine proper or otherwise but the analogy that that we envisioned was the application of the st problem of god day because i got a look at the issue were they required to follow the guidelines or were they not required to colleen's was this not executed i believe on for a couple of my clients there was and for another one ther was not to the best of my recollections or well for those that executed the waiver however they have a clean it and know what they were signing obviously they didn't know it would rise to this level they did not know that their cows were going to die but that's not what the even know about the existence of the of of the program the rd did he filed the application with the f s a farm services administration who then requested that farming of agriculture transfer the information of to them so they could process the clean part of agriculture infused to transfer the information so you know at ground level it's a little bit different than than where it is where we are to the well but just just very quickly on the ground level so i understand the cont what you two were just discussing is that in order to get the free tick treatment you've generally the rangers have to sign this waiver is that essentially how this works know the way it works is that you are mandated criminally if you don't comply to gather their cattle up every fourteen days in to submit them for inspection at your own cost and at your own risk and then you do that if they find ticks on  at the very at the very outset they they present these to the clients and say here you've got a sinus and you've got some of the very and if they refuse to sign it or and or they refuse to submit their cattle then there's a criminal sanctions for that so i don't know how voluntary that waiver is i don't know how to go share that was there was certainly no promise of ok if it's mandated so that means you then in you know if you if you sign that and you don't even need a warrant an exception because they're free pretty go of the the issue here is the other any regulations that are going to can face an imminent and immediate disease threat and therefore in order to quarantine people or cook life stock it's expected they're going to move in quickly and they may use d d t or they may use whatever they do even in a hurry negligently contrary to the labels the whole point then is that's forseeable and therefore they're exempt to try to contain the emergency that needed to be more warranty if it were your own if it was performed under a day analysis of of the two prongs then i would agree with you but in this case there's no oversight whatsoever and so for somebody to come in and say well here's a guideline to say you do it the right way but we're going to do it the wrong way for whatever reason and no way to question this look at it we have no way to question there is no remedy here law well and the purpose of this appeal is to bring it to this court free for you all to try and give some light as to how agencies are supposed to act in whether or not you all feel that there's any oversight that's justified in this type of situation because one oversight could i mean one infraction could lead to another infraction could lead to another infraction basically there is no case law that we can find the gives the court the ability to say no you have to stop you have to have some standard of conduct but there is none here they've established from standard a contract that they don't follow and so i do not know but with people are losing property here and if it had been done right perhaps they would've lost any property but because they did it the wrong way we're claiming that we lost property so why  can't why can't the government be expected to do their job the right way why do we have to always let them take a free ride on their own negligence if you were to  let's look where they mandated to do it a certain way into the violate their yes or no and the other point is whether or not there was a a an action taken in order to protect the sanctity of  may please the court my name is jimmy on the biggest i'm going to sustain u s attorney and i'm here on behalf of the united states and the other federal defendants in this case the cattle fever take a radek a sion program has a longstanding and  historical role in the in protecting the domestic cow industry for over a century those in the program have worked to prevent a specific cattle fever tick a specific tick from entering the united states they do this work through the use of corn teens both permanent quarantine zone and as it relates to this case temporary quarantine orders so there's a permanent quarantine zone along the rio grande river most of the counties that abut the river but whenever they detected outside of that permanent quarantine zone the state working with the department of agriculture implement temporary point two hundred orders and that's what they did in this case they put temporary pointing orders on the properties of the cattle owners that are the appellant's here so once those temporary pointing orders were put in place the cattle on those properties were required to be presented for inspection they were also required to be treated with kogo the ultimate issue presented here is whether the harms that the opponents complain of the actions that were taken that caused those times whether they were caused by the implementation of the quarantine the imposition of the quarantine or were they incidental to the point in our position is that they were clearly  required by the quarantine and that is how the actions that were taken were not only done to enforce the corn team to kill the tech to prevent the spread opposing counsel central sort of quite anguished thrust is that the government does allow torts to be brought against it except for these exemptions and i guess my threshold question is the magic you pointed out i think but correct me if i'm wrong the magistrate added an even stronger thought in favor of the federal government when it applied the prebuilt and deference so so if the lower court's ruling was sort of double deferential to the government are we in a situation we should remain and let that court know i know your honor based on the plain language of the exception itself and the overall purpose of the f t c exceptions which has been recognized by by the supreme court on several occasions congress has decided to carve out certain governmental act to be certain vital government activities in here it's that the implementation quarantines and in carving those out from potential liability under the federal tort claims that congress has made the decision that that it doesn't want those activities disturbed or for the persons implementing those activities to be hesitant or be in fear of being nd guessed through the threat of a future limitation to get this extraordinary immunity the harm has to have been caused by and that's quite a high standard higher than others correct higher than a rising arising as a result of yes the imposition of quarantine all three have to exist how my question is sort of is one that isn't is directly addressed in the brace how was this a quarantine at all when they spray the treatment onto the cow that isn't the isolating of the cows that's taking a totally different step which is treating the cows what's the best authority that says a quarantine extends to treatment as opposed to just isolation i think if if if the exception in the plain language of the exception said  isolation like you rounded them up and they could died as they're going down the what i'm talking about is treatment doesn't sound like isolation to me that's nothing to do with ecstatic or imposing that's doing something other than more than isolating what case suggests that the government can actually now start treating people or things that it is quarantine and still get the benefit of immunity well i would refer the court to the re decision in re they gave several procedures but this is i think the best example that i'm getting to the forced exposure of livestock to unhealthy animals that that would be something that falls within the quarantine exception in here as a result of federal regulation there is a forced exposure of healthy animals to a very unhealthy chemical coelus hazardous it's toxic but it's the only pesticide that the federal regulations authorized this program to use in enforcing the point you raise the government has a nationwide ban on a chemical like d d t you're saying there would be no action no cause of action here if they said you know that's cheaper for us we're going to use something that it i think that if it were a national emergency a health emergency in decision makers had decided that this was what needed to be done to protect the public health that that would that would fall within the coin to exception it would fall within the the purpose that congress invasion difficult i mean maybe that's the case but but i can't you keep thinking these quarantines are just for animals they're for people as well and your position the government's position is we cannot only isolate sick people or cows but we have complete immunity in terms of how we treat them what we inject them with us in order to further the purpose of the coin presumably it's a perfect prevent some disease or something from or state regs but in chapter nine apart seventy two dollars of the federal regulations the requirement that the corral be used but then also the specifications of the types of treatment applications of the method of different chemical that is used but that is not to effectuate a quarantine order as set forth in chapter nine part seventy two that's just a governmental preventative action that is being done for the border patrol horses that are along the border but you're correct you're correct your honor that i believe it's not corral that's being used so the federal government's livestock doesn't get the coa the border patrol confirmed with my client about the waivers and i was instructed that as a policy decision that we were not going to argue that those waivers prevented a lawsuit from from coming forward so we the government effectively waive that argument and that's why it's not before the court is not discussed below i think an important aspect of that provision in the federal regulations and in my view shows that it is contemplated that the use of these very toxic pesticides and chemicals on cattle a could very well be to loss and death or yes your honor yes your honor again is my st time understanding this of course his clients live it all the time as do yours it would seem to me when we're talking about part and parcel of the program these compensation mechanisms would be generously granted you deal with it in footnote fifteen ollie and i couldn't quite make sense of why his that but the point that i was making was that if if my client the u s d a had had not properly administered the lap program the remedy wasn't to ignore the limited waiver of sovereign immunit unreasonably delayed but of course my my client should be administering this program properly there was the allegation that it was not done properly below but that was not explored factually in the you're saying it could be an a b a claim if the  anyone who use a pesticide to comply with the label st of all there was a look a lot of robust back and forth and we strongly contest whether we've violated the label restrictions or not but of course the court me not  should not reach that issue that is very much a merits argument on whether we should or should not be liable assuming that there is a waiver of sovereign immunity here the threshold legal issue is whether the quarantine exception applies because cause we've got to look a little bit in his argument at least in the brief i thought was well there was an intervening cause that was not forseeable they would never have imagined that the the spray would be done in a box that had no ventilation but so we have to look a little bit at those facts to make the jurisdictional determination that you just you certainly do have to look some at it but at the at the facts and what happened in the end and what were the circumstances under which these these cattle were in that point must be treated with pesticide in here it's called around and then that sprayed it machine also referred to as a spray box is one of the methods of application that the regulations authorize the quarantine areas that we that are part of this case or not that permit fourteen a area these are areas north of that quarantine zone and and yes shortage correct when they do quarantine temporarily as they have done  here it does involve the application of chemicals so you never argued below and it wouldn't make sense to argue the treatment is different than isolation the courting doesn't encompass treatment that hasn't been your argument at all in this case season point on is why we're here because we believe that it was not the ministry in the way that we would have anticipated that should have been by virtue of the regulations in place and the laws in place destruction of personal property by virtue of subsequent actions taken because of the quarantine that's the distinction reskin the court to try and expand on and clarify sure that we don't have to come up here again a