the meat department i don't believe that they did in fact the the defense commissary agency's director thirty seven team says you're supposed to maintain a healthy work environment and you're supposed to promptly investigate and that is the the negligence on the part of the of the united states is that they had people literally dropping like flies in the commissary after they had noticed that there were mold problems and they failed to react and that's the that's the basis that's at least one basis for unlike the one you just heard about that the that there is discretionary immunity and ice in i submit that the ninth circuit will not be adopting the interpretation of discretionary immunity that the fourth circuit have and if that were to be the case then the federal his duties and collides with the car and justice scalia's that that is absolutely what the federal court claims act sought to preserve for people or give to give to people to suit against the state and he said a clever lawyer could make the argument that someone driving a grocery store who was injured by conditions there if that were caused negligently and that is fundamentally what the federal court claims act sought to give to the people it is not one of the regulatory agency decisions suit like that we're not going to allow you to sue the federal aviation administration when it comes up with a it backed up safety protocol for the industry because we want to make sure that our government provides that regulatory protection for for all of us but what the federal court claims act did carve out for the people to sue when the government is going to take on things that we experience in our daily lives like operating a grocery which the commissary is that you've got to comply with and that's what the tort claims act says as if if you would have a negligence suit an ordinary garden variety negligence suit that you should be allowed to bring that against the government so that's that's the basic position there's a case which we should have that happened in the denali national park in alaska and the question the lawsuit was was brought against the park services for failed maintenance and failed design of the road that contributed to the accident and this court said that we're going to give discretionary immunity to a decision about how to design a road because there was an allegation that that the united states failed to design it should have designed it with guardrails immediately and they said well there was a policy decision made that we don't we want to preserve if that expense and preserve the natural miss of the park and therefore we were not going to design it the way that the plaintiffs later wanted but they said as far as maintenance goals and notice that this road is deteriorating that is clearly how side of this crash unary leave that is a function that we see locally you know that they can be brought locally all the time for negligent road maintenance and that's very similar to this case we're not talking about regulatory decision of any kind we're not we're not suing osha for not having more regulations in place we're suing a grocery store because they did not react to noticed that there were problems made in the course of carrying out the agency's occupational health and safety program at the naval base on the stand the supreme court in this court had held on a number of occasions that the kind of policy choices that agency personnel made in this case in this case because i believe that it is part of the case of the government's hazard of being a program at the commissary requires agency personnel to identify and address particular hazards they had just question in doing considered an occupational health and safety hazard mold was not at the time and i don't believe it is now a regulated indoor air contaminant it was not so in prioritizing the hazards that the commissary addressed agency first will chose to deal with the more obvious more real hazards first and the record contains numerous examples of where agency personnel chose to deal with obvious hazard thought that there was a problem with your run of the record shows that the government first became aware of the mold that was found inside the wall cavities in the me cutting room in the fall of two thousand what happened was the safety manager at the commissary conducted his monthly spot check inspection which he was required to do under the regulations and in the course of conducting that inspection he came across he noticed a bolt that was coming out of what they found at that time was that the interior structures of the walls had been damaged by mold contamination that is not to say in this case that the contractor to bait the mold and charge the mold was abated within a matter of three weeks and the repairs of the damage while structures were completed within three months time in there has not been a problem  fact was to have the mold removed they wiped it out and they took care of the problem i refer your honor to pages sixteen twenty two and twenty six of the air service and records indicating not have been based on any permissible policy judgments we respectfully disagree in carrying out the policy objectives of safety and occupation occupational health and safety at the commissary government personnel had to weigh a number of competing policy interests and had to take into consideration on the one hand the need to maintain a safe and clean environment at the commissary on the need to identify and abate hazards the need to  promote cleanliness and efficiency and way those considerations against not only cost half in resources and funding but also other programs that competed for the agency's resources such as the need to provide education safety training an was not a regulated indoor air contaminant unlike radon or carbon monoxide or carbon dioxide which scientific studies have proven at high levels can present a real threat to human he can always make an argument that they're somehow with the government some policy decision making at a higher level and his his motor vehicle accident example was perfect because big he said there the government could make the argument that the that they wanted the high ranking official to be traveling quickly because he needed to get to the united nations to make an argument and he said you can always suggest that there's a political policy reason or an economic or a social reason why they did something that they did wrong but that's not what the friend the tort claims act allows for in your case that's why i brought that up was the a r e leisure services case the denali park case addressed that budgetary issue for example about prioritising they said that if you have a duty to maintain a road just like you wouldn't a local jurisdiction you can make all the policy hardness you want but the federal tort claims act as carve that out for people to sue on and that's exactly the same case here and just let you were asking about you know what facts were considered by the by the district court judge and you know we were twelve feet out of a very early so very little facts were developed but the facts that we do have show that there was a reason to  problem which was causing it presented a toxic situation for people the commissary back in one thousand nine hundred seventy and one thousand nine hundred seventy and because this is a garden variety negligence case will be using local law to establish that the promised arry had to have the same duty as a local grocer and they had a duty to use reasonable care and that reasonable care required them to respond to potentially data situations like the notice of mold and like notice in observation the fact that people are becoming sick thank you both we will take a brief recess for about fifteen minutes have the fifteen minutes and after the recess we will proceed with argument