flight judge hall and i are happy to have you with us valerie will give you a two minute warning when your time is about to expire so that you know you will need to begin to wrap up and with that we'll begin with our st case which is number eighteen dash fifteen thousand and thirty three foster logging inc vs the united states mr stevens whenever you're ready is working to harvest the governments would again for both the benefit of itself and for the government the government makes the decision to start a controlled burn at the end of the day i'm not so concerned with why the government decided to start this co i know you just said you for going that point but let me play devil's advocate for a nd even the even though you may have given up that point completely you don't think that the regulations of the forestry service matter in determining what as an initial matter whether or not this is a decision that falls within the discretionary function exception to the federal tort claims act or just certain i do think that there are definitely regulations that do a quiet when it comes to starting a controlled burn why one would start a controlled burn and that and the reason why we can get that point is because we agree that that would fall within the discretionary function exception they've invited onto the property what are their obligations to people not not in all these other cases where they're just adjacent property owners or or people passing by on the river that get hurt because a parlor gets raised a party that is actually invited for the benefit of the government to the government's property that doesn't get warning through their meetings of this controlled burn it's our position it's not the type of policy is not the type of discretionary function  obligation for the government to warn people that they have brought on the property for their benefit and i'm a parent as i read as i read paragraph twelve it's not just failure to warn because you say negligent failed to observe monitor and maintain that burn that's right that's just that's just that's not just faded or worn or are you saying now that it's just  discretionary judgment exception and all the cases that the that the lower court relied on and all of the cases that the government relied on the majority of them dealt with a special type of fire and as i'm reading these cases that they're talking about where all these you know government agencies are fighting fire i've you know i can't help but find myself something billy joel's we didn't start a fire because the government by five counts five cases in the part of their brief where the government is with respect to the indian telling all these cases what to say it and i and i and i felt like i would be remiss if i didn't bring it up too even though in that case the government didn't rely on this exception to support why they shouldn't be liable for not keeping a li us the case there is this and her idea that they're supposed to be going out and becoming aware of trees like this like locust tree that could cause damage to supposed to be going out and identifying potential issues in a warning and dangers for people see if there was a problem was what you what what this court came to the conclusion of fell within the discretion management and in our case this this was a designed controlled burn everybody knew it was going to ha right thank you very much mr stevens mr parker good morning your honor and may have please the court this is bradford patrick on behalf of the united states to survive a motion to dismiss for lack of subject matter jurisdiction a plaintiff who sued under the federal tort claims act must alleged conduct outside the discretionary function exception the district court below dismissed the appellant complaint because it failed to do so the discretionary function exception preserves the government sovereign immunity where two elements are met st the challenge conduct has to allow the government officials to exercise some degree of judgment in other words where their specific choices in a given situation are not prescribed in mandatory terms by statute  regulation or other directive where officials aren't bound like this their conduct is presumed to be a matter of discretion and the st element is going to be satisfied with your nd mr patrick this is judge jordan can i ask you a couple of questions that case did not involve the discretionary function exception but it does hold that the united states can be held liable under the federal tort claims act for negligently allowing a fire to be that principle and go over to explicitly and as your honor mentioned rand there was not a discretionary function exception case the government didn't cite it the discretionary function exception is not mentioned anywhere in the opinion so to the the government decides to carry out a controlled burn and it recognizes that there are dangers in the controlled burn spreading beyond the prescribed area so it makes a policy decision taking into account all pros and cons all risks and benefits caustic cetera that it is going to take steps x y and z to ensure that the burden is not going to go outside of the prescribed area the people at the top tell the people who are going to carry out those instructions what the instructions are and they tell them once the burn begins do do x y and z to ensure that the burn does not go outside of the prescribed area on the day of the prescribed burn the employees at issue fall asleep at the wheel they literally fall asleep and they don't carry out x y and z and the burn goes beyond the prescribed area and causes damage a discretionary function exception apply given the factual scenario your honour's hypothetical presented the negligence and back case would be workers falling asleep discretionary function was designed to shield and since that that would be the negligent act that would form the basis of a theory of liability there would be a very good argument the discretionary function exception wouldn't apply and i think that would be similar scenario to they mislaid paperwork or somehow forgot about the steps needed to take to execute that policy then that might be a basis upon which the government would be liable outside the discretionary function exception conduct  how do you know how do you know that that is not the sort of negligence that it was that issue here the complaint is general but that's because the plaintiffs doesn't know what happened within the forestry department and they won't be able to know until it takes discovery and the allegation of paragraph twelve is that the government negligent fail to number one observe number two monitor number three maintain that burn how do we know what the actual negligence was at this early stage given that you mounted a facial complaint plaintiff has satisfied its pleading standards before committing discovery could again and i'd also point out that i could have how can it be how can you be so what do you think what do you think the negligence alleged is what do you think that they're claiming the idea they just know that they were damaged by something that went on how much more specific do they have to be to avoid the discretionary function exception at this point well i think your honor they would have to allege conduct  similar to your honor's hypothetical their day to be facts that alleged conduct that outside the discretionary function exception here decisions about whether to monitor and observe and maintain a fire those are inherently the employees then negligently failed to carry out those instructions that's operational that's not discretionary function well the supreme court rejected that the operational distinction in covert operational conduct is as inflated by the discretionary function exception as is planning level decision what is what's relevant is whether the choices could be grounded in policy and decisions about how to maintain a fire certainly could be influenced by policy decisions considerations such as public safety the safety of the firefighters environmental concerns the needs of the military and so on these are all policy considerations the if you so d if they had alleged that the government had decided to take a certain number of steps and no more than those steps to maintain the burn and then employees failed to carry out one where where the the complaint would have alleged the violation of mandatory directive in that case that would that would have disposed of discretionary function exception included stuff one in the government would then proceed one more one more question if i might mr patrick the supreme court going back to reagan era the supreme court has told us that it is it's prerogative and its prerogative only to overrule its own decisions and that lower courts are not supposed to assume that cases have been overruled sub celestial by another line of cases that have completely undermined its rationale or reasoning so what do we do about rainier which has never been expressly overruled by the supreme court well your honor i don't believe it controls this court's analysis because it was not a discretionary function test brand they're held that the government can be held court takes a look at the ten circuits opinion and hardscrabble ranch there is an expect sense of discussion on rand year why it doesn't apply and why the th circuit did not believe it got it it's announces their hardscrabble ranch life here was a case involving the government's management of a of a fire and so i would urge the court to take a look at the th circuit opinion there thank you very much mr patrick you can you can finish up if you'd like thank you your honor  is i haven't fully prepared been able to fully prepared for this argument your honor because as i said it hasn't been raised i do know that there are many cases in this court regarding failure to warn   mr stevens you've got your time for rebuttal thank you judge jordan just just briefly i think i think it's telling that you know from judge sort of hypothetical that the government concedes that the negligence claim would survive a motion to dismiss it again if we were able to essentially have the ability to leave certain details which conceivably we don't have the ability to do absent discovery at this point  handful that were decided at this point too but but nevertheless we have what we have to plead and we don't have to plead with particular to the point brought this is a we have to be general locations to support not only our case but also the subject matter jurisdiction of this court which we believe that we have the heart the heart scrabble case with opposing counsel left on it's not the same as this case that's a we didn't start the fire case that's a property owner next to a national forest where he can claim damages in that the government's failure to warn is not necessarily shielded from suit simply because a discretionary function is somehow involved that's again that's the one where they were hot rock the government knew about it the government made no effort to actually warner do anything about it and that's why the government exception relied upon by by the government and we'd asked the court to remand the case for further proceedings all right thank you very much mr stevens thank you both thank you