we're appealing from the court decision basically in which it states that the we did not establish the fact that there was a personal relationship or a duty for the government  thank you ok basically what happened the court found that the plaintiff did not establish a duty in the united states government to protect her from the criminal actual tortious acts of a third party their own c the court also found a district court also found that there is no status for the plaintiff for allegations of economic damages i'd like to make it clear quite clear at this point that there seems to be a misstatement here by both the defendant and the court if you look at the l a geisha is in the complaint it's pretty clear that an alligator complaints fourteen sixteen seventy one seventy three seventy seven and eighty four the plaintiff has made allegations and requested damages for other than economic damages it's pretty clear that it's there so i don't know where the court came up with the fact that that's what occurred because that's not what occurred well as i understand the district court sort of the key here is while you're here in the federal tort claims act you begin with have to find some sort of  state law klein but your and state law for you to be able to prevail on a case like this where the f b i didn't do anything to you but you're saying that they're responsible for what somebody else did yes and you have to show a special relationship and the district  indicated and under georgia law there it could find no case that would extend the notion of a special relationship to the facts of this case that's exactly what the court found i believe the court's in our line for the simple reason that the cases  agreed however there was a special exception determined by that court at that time under section thirteen fifty three fifteen a of the restatements second of taught in which they accepted the reasoning in that court saying however they can be special circumstances or special relationships with a duty will attach and where the liability will attach where arguing here your honor that that duty didn't in fact attach that because that case the bradley case as you have to be able to have control over the person i disagree around i think what happens is though that case talked about control it was a case i had totally different circumstances and as that we have argued in our brief in our motion to certify that the question is that is not precedent under georgia law how can you aspect of control as a basis for the special relationship and the only two times that it's been found to be a valid exception had to do with people as i understand it correct me if i'm wrong had to do with people who were  in institutions one a mental institution and the other in a nursing home if there was a baldwin case was an example and so is there any other case there's no other case and that's the reason is because nothing like this is ever been presented to this to this c court when you have a situation where the third person was put in the position and then and then knew that this person had a propensity and it was foreseeable that he in this case he manager pay of the confidential informant had a huge and long criminal history that he was more than likely it was stolen foreseeable that he would engage in this type of conduct the there is nothing here that that cannot be press in the law within the state of georgia itself pacifically states and i cite the case of norris  board of tax assessors where unless the facts are substantially the same that case law is not precedent for this what is your but you said those cases aren't good but what's your best case what case do you have in support of your position you don't believe this case in the first circuit your own in the first circuit correct we need a ga well we don't have a georgia case that's even approached as that's why we don't have a case it's never going that that's why we filed a motion to certify because we're in a position right now with this case should go to the georgia supreme court for clarification they are the final arbiter of the laws of of of georgia not the federal courts and i think with no disrespect to the court but it this is this is why you have and you have in the past many times certified cases to the state courts for clarification with his unsettled law we argue that this case is unsettled because it's never been heard before when you don't have substantially the same facts how can you apply case law that there's no way that it could even look at this case law just doesn't make any sense your own  that's it sounds like you would agree that we have to certify the case in other words we can't create a duty out of all out of whole cloth that the georgia courts haven't found i don't think you can create out of whole cloth but what i'm saying is that when you look at what you have certification is probably the best answer obviously i'm going to argue that the alternative answer would be yes that this case does satisfy the control issues in those that they are but from what i'm hearing for the court that's not there because the there was the court is accepting fully that you have to have this articulate if i dislike a disagree with the standard but i think it what it is is i believe you wanted to have a standard there that's thirty two years old to and i think it's a thirty four years oh it's time to look at something because the restatement second that the court relied on in the bradley the now embodied in restatement third section forty one a which basically says control is not the issue in the commentary that foreseeability is the issue just like they found in the first circuit let me ask you this i mean essentially what your argument is is that whenever an agency a federal agency as a confidential informant who goes iran and arguably there could be some negligence by the agency and not supervising adequately that every one of those cases is now a absolutely not that's not what i'm arguing at all what i'm saying in cases under the circumstances and facts of this case have to be looked at all the other c i s they might have followed their d o j policies and procedures they didn't do it here they option there's no discretion in following the policies they're mandatory they specifically said in the in the entry introduction to the policies it's right there the preamble it basically says these are mandatory where would you have the matter at all that your client this is not a situation where you have an absolutely innocent victim who a confidential informant did something to your client got involved very questionable situation where she agreed to let this person she barely know knew use her name to get loans in return for payment of money and payment of additional money after each month that transaction eyes surface looks quite questionable and most people would think it confidential informant or not doesn't look like a good thing to get into it may your honor if but let's have the trial because i think once we go to trial we can find out i had a lot of other things that we haven't been able or through discovery that we haven't been able to get through i think there's a lot more facts here that way we don't even know about including the fact that ninety jackson was never prosecuted for anything see i was never prosecuted for anything any of the crimes that they committed i think we have a person here that was taken advantage of by someone because we're looking at the fact full testimony or depositions or anything and i think i don't want them prosecuted for any sort of fraud was she in terms of letting essentially there was some fraudulent she wasn't prosecutor investigate never charges for never prosecuted never raised and that's wh we are in this situation around and i'm basically saying that we have a situation here that is unique first impression and i think the certification is the first answer the second is that we have established as they did in the davis case that the control is a question before you sit down about you said that the policies are mandatory yes but when i look at them i see a series of factors to be considered what mandatory policy was violated here that would create a centrally a to court my name is gabriel mendell i represent the united states of america apple e in this case as the court has noted this case is governed by the bedrock legal principle that there is no duty to stop third part third persons from causing harm to others and in f t c a case the plaintiff has to establish that under the a political state law a private party under like circumstances would be subject to liability as a district court properly found here plan to fail to allege any legal duty owed to her by the united states and therefore fail to state the necessary first element of a claim for negligence the plaintiffs contrary theories essentially ask the court to set aside thirty five years of georgia precedent including cases applied by this court counsel for plan of his suggested that this is somehow a case of first impression and yet he and i were here five months ago arguing the case of frazier versus united states which arose from the exact same factual scenario the same f b i relationship with the same confidential informant and as a panel of this court easily found the material material identical fact in that case failed to establish sufficient allegations to show the requisite kind of control that was contemplated under the bradley center test judge and tone as you pointed out that this term control arises over and over again not just in the ga cases but in the cases in the northern and middle district applying this law this court's decision in frazier and this court's decision back in douglas asphalt vs core from two thousand and eleven and it's a very particular arised kind of control it's the legal authority to exercise physical custodial restraint and there's really there's only the two cases the court has already noted there's the mental health patient and bradley center and there's the nursing home resident and that's it and thirty five years in this court the district courts in the northern of middle district of georgia and the court of appeals of georgia in numerous cases in a wide range of factual scenarios has found that there is no such duty and i'd like to quickly address three examples that i think are lusher dave of why this court was correct in frazier and why the district court below in this case got it right the first is landis county which involved a police officer who was approached by a visibly drunk driver and instead of detaining her or taking her off the road as it was agreed he had the authority to do he allowed her to continue on her way she was involved in a traffic accident and killed the plaintiff's husband and what the court there noted is that although the police officer had the authority to arrest he did not have the duty to arrest because he different because the police officer had absolutely no relationship with the drunk driver it's it's certainly different factually but not for legal purposes because what he lacked was that physical custodial control which is the same absence that the court the district court noted in this case no question there was a longer relationship in this case and it was if you take the plaintiff's allegations as true as we must it was involve frequent contact the exchange of money gifts it was longstanding and and frankly if you take kind of salvation is true it was questionable and inappropriate but none of those things are relevant to the dispositive question of control that physical custodial control on the legal authority if you look at travel versus bradbury this is a case involving the relationship between a father and his adult son living at home a son who shot a police officer as he was being taken into custody and what the police officers the plaintiff allege was that the father had control over his son because he had the ability to control his housing his employment his income and he could have used that influence to force his son to hand over his guns to surrender those firearms and what the tramecourt found is that no this this is not the kind of control that's required and importantly what it noted is that the criteria r and now i guess to that bradley center situation where you have a because there you had a military officer who is in command enlisted people who he did not have any experience in military you know that that control can be pretty complete and i do as a matter of fact and yes and how what the court notice is yes this is an officer who has the military authority who can issue lawful orders he has command control over this airman but nevertheless it's an quote not the kind of control and i think that's important to note plaint effort to allege control essentially use the word control in its most colloquial sense as influence or persuasion rather than the specific legal definition that is at issue in this context and i think the trauma court has a nice job of articulating some of the policy reasons behind this because anything other than that bright line rule creates tremendous uncertainty and exposes to potential tort liability and less arrays of folks in relationships you know parents over their adult children spouses significant others law professors and their students you know even judges in their law clerks potentially and that is not what georgia wants and that's not what georgia has articulated in thirty five years now mr mr roboto points out it's been a long time since that decision came out it and that's true but the passage of time in no way diminishes the controlling nature of that precedent and the fact that the georgia court of appeals has applied that numerous times and the georgia supreme court has felt no need to revisit the issue makes clear that that is a good law and it remains controlling here certification was discussed we think certification is neither necessary nor frankly proper as this court in frazier five months ago how there's no real question of georgia law that's in substantial doubt and without any substantial doubt as to the question of georgia law there is no reason to certify it is a routine routine for federal courts particularly in federal tort claims act cases to be applying state law to new fact if the if the simple issue that the facts of this case are new merited certification well virtually every f t ca case would require certification at the supreme court and basically be an abdication of the federal court these cases are are not relevant for the simple reason that they're applying the wrong law massachusetts cases the first circuit cases properly applied massachusetts law is the f t c i require them to do our district court and this court need to apply the georgia law that we've extent and in the way that it sees fit and that's what it did in bradley center that's what it's done in the cases sense and if they decide to revisit it that is it is their right to do so and there's no need for this court to ask them to do so in this case  simply put it's not a case of first impression if the frazier decision five months ago had been published it would be controlling today it wasn't but it still remains instructive and persuasive as to the issues before the court and for those reasons and those artic brief notes the court has a name for their questions we'd simply ask that you affirm the district court's decision thank you but they are specifically in this specific specifically within the recruitment for example who says in judge cooper's order just group in northern district of georgia to hear that part of the record you say it was not extends to the complying to my complaint when i brought with me  was attached in the absolute absolutely it was attached in the first amended complaint and then referenced in a second i asked the exhibit three f b i informant guidelines they said you refer that's correct yes and then they're pretty specific and also there was a court order judge cooper had ordered in the northern georgia that he not be used as a c i without the approval of the court nothing established that he was over use got permission ever upton permission but but that doesn't well i think it's negligence if you don't inquire as to whether or not this c i is capable of serving in that capacity based on their own policies yes i do believe it's negligent and i think that's the basis of the negligence here was their contempt hearing by judge cooper to hold anyone in contempt for disobedien information we have a wire does whatever they want to do and come back and does their job not goes out and commits crimes and does other things that they do unless they're authorized crimes which are what can be authorized on the deal j policies these were not authorized cripes there's nothing to even indicate that these authorized we all know that they can authorize and they authorized what fifteen thousand last year so i don't know whatever that may be i think that's the situation and yes judge so are you arguing that the violation of policy equals control under georgia law not that i'm not clear on the no no what i'm saying of the violation of policy is the negligence the control on the judge georgia law i believe has to be revisited because when they followed bradley as i said earlier bradley was section three fifteen a of the restatement the court took that the court also took case law from so many other jurisdictions so to say that we should look at other jurisdictions makes absolutely no sense to me but i'm just saying that at the situation the government argues that i see how i don't see how that's a valid argument but what i'm saying is that if you look at what the court has and we have the policies here and in the irwin case that he was talking about massachusetts law the irwin case was cited by the dissent in another case the government reference just now which was landis and that the sent two judges of the judge replied court believe that is foreseeability and not control my argument is after all these years in the change in the restatement and how the control issue is now handled over the last thirty two years the georgia court should be given an opportunity to look at this case and to decide for itself and for its residents not have the federal court decide for its residents what the law should be in that state and i think that's the opportunity that the this court has i think it's a great opportunity to allow the georgia court the supreme court which i must add one of the georgia supreme court justice was involved in this case well typically typically we are not supposed to certify cases unless the question is case dispositive this questions not case dispositive because even if you win on the question of whether there's a state rockline that we can go to the discretionary exception of federal tort claims that i don't believe for and i don't think the discretion of that would be at the lower court but i believe  and i don't believe the discretionary function applies how can the discretion when it's not case dispositive because i know they should when what the state supreme court or saying yes we think this is a special relationship we then you still it's not clear at all that you an option ok if there's a choice on the cover here's how you handle it this way that's fine but if it's not that at all it's just you have to do this to use it to seat it for cia to recruit the cia you have to follow this that's mandatory so there's no discretion there's no