you your honor may please the court jack straw on behalf of the defendant palance the district court in this case rested its decision upon the mistaken conclusion that evaluation of the navy alleged comparative negligence would simply require the jury to consider what the court called a safety related question let me ask you this before you get into the merits of the yes is there's a final plaintiff or i believe panel had found but it's subject to review by us i understand and i want to follow up on that question since we're on our you say in support of the twelve nothing to be certification under my c facts are uncontested and undisputed but you say in fact session the nabi had substantial responsibility for trying in testing the t thirty nine in parliament on among other things margins procedures and contested are the facts that give rise to the political question issue that is it the court does not need to resolve factual disputes here that's think fact that underlies the political question issue who is responsible for the navy had no responsibility then obviously it's no problem a political question of that there is not a legitimate factual dispute about whether the navy had responsibility for training there and there  the navy manuals that are in the record make it abundantly clear that the navy was responsible for reviewing the training program every single year the government flight representatives were responsible for reviewing and auden your twenty year argue in the facts not doesn't make them uncontested they are not legitimately contested put it that way but i mean everybody who argues factual disputes before us is wrong and therefore the facts are not actually disputed or contested but those are so one sided yeah i don't i don't i don't necessarily agree with with the court on that where there are navy manuals in the record that plainly state the navy's responsibility for training certainly no question about the navy's responsibility for selecting the aircraft certainly no risk no dispute about the navy's responsibility for the decision to fly at a tactical speed and a tactical altitude in a business jet that saying that at the district level they would might agree with your presentation of the facts but they aren't that contested it they may not be a ballot you might win on it is what you're saying my evidence is stronger but that doesn't mean that the other side is not contesting it which is what's underlined the twelve money to be you know the other side is not contesting that the navy selected this aircraft let me try to clarify your position you're arguing the historical facts that who what when where and why facts are not contested but then again the responsibility is a mixed question of wall and fact and that is contested what what was the ultimate cause of the crash is contested everything having to do with the navy's responsibility in the navy's decision making is not contested in the historical facts may not be contested right but the ultimate next question of fact and law as to the navy's responsibility is questioned and that's not the political question issue responsible for trying and proceed yours and design of the all that is this a political question does the political question doctrine apply that as clause if the navy is responsible that's not that's a mix question of law and fact which is outside well it's in a related with the political question but it's not the question let me suggest i understand with more the court is going to two things i'd like to suggest number one is no one needs to resolve disputed facts in order to assess whether or not a political question exists here that deprives a court of jurisdiction but we would have to resolve whether the navy is responsible think i don't agree because i think that is not even contested as to whether the navy is responsible for this aircraft selection for the speed for the altitude for a number of things that the evidence indicates and the district court below agreed contributed to the crash and i thought there was powerful evidence in this record that this crash was caused by pol certainly isn't that what the record shows in this that's what plaintiff's experts contend in this case the navy and defendants experts contend otherwise the time between the malfunction of the yacht amp or and the tail breaking off was less than two seconds in the record one seventy eight dash eight page three less than two seconds the navy described the pilot's response as a normal response promote function defendants experts describe the response is exactly what a good experienced pilot would be expected to do plaintiff's experts one of whom isn't in the courtroom today describe it as something different understandably that is a contested fact but i do not agree that that contested fact needs to be resolved in order to determine whether or not the court would be obligated under this proportional liability system to evaluate whether substantial rights at stake substantial interests at stake could be adequately reviewed on a post trial appeal and in that footnote the court again it was did it was dealing not with political question but it was dealing with the alleged derivative immunity claim made by the fed in that case but the court had this to say among among the particular values of high order that supreme court has deemed to satisfy the third cohen factor honoring the separation of powers is among them because potential interference with sensitive military judgments implicates separations of powers presidential has made out a substantial claim of interference with the value of high order such that its claim satisfies the supreme court's test under will in other words where we have political question doctrine issues seriously at stake as i do as a believe we do here it satisfies the third prong of the collateral order doctrine i mean you can't have an effective review post trial appeal once you have already had the judiciary delve into a cases they in my reading the cases they never looked at that issue as to whether or not political question in and of itself was enough to satisfy the third common factor and i've laid out in the in the briefing further  you could your honor you could set aside the training ok set aside the training completely and deal only with the selection of the aircraft the speed the altitude which nobody disputes so so now you're asking us to take a case in which the historical facts are the facts key operative facts are disputed and try to prune those back so we can go and walk a tory appeal which may be mooted one way or the other or might be mooted one way or the other but the determination of the disputed fact that that's not what twelve nine to be has about well your honor i think that where we have the serious risk that the judiciary will wade into an area reserved for the political branches particularly potential that the jury could announce a finding that from the military may be negligent decisions about how to train forces for combat that at the very least we should take a serious look at the collateral o didn't move to invite them correct and other sex just said well if silence is pregnant i think that the public is also a real party in interest here but not when it comes to the political question where the public is represented by among other things the department of justice and the navy and the navy is then to say the navy's aware of this is as you know gross understatement i mean i'm ordered to to to spade in a discovery conference yet nothing nothing has been said by the government about political questions whether the navy is aware of this case beyond its discovery obligations whether the navy is aware but ok you don't think when you get into discover dispute with a branch of the armed forces that anybody other than the person who response to that to the request i think i would find it hard to believe that it ever elevated beyond the jag officer who handled the two request and responded to i'm kind of hard to believe that you have a crash a plane and death down there and the navy's not aware of it beyond the jag officer level and aware of the litigation and aware of any accusations about the nabi shortcoming i can't believe that would have happened but more to the point why didn't you move for the district court under five twenty seven to indict a statement of ventress or not interest from the government did i believe it was necessary while i understand you do concede a certain that if one had been indicted and the government come back and said we understand your concern but we don't share it have at that beauty lose on this one yet i don't concede that because i don't so you have you have more standing to assert the government centrists than the government i don't think it is soley the government's interest as to whether or not the judiciary goes into areas reserved for the political branches i believe that there is a public interest and  represents the public issue interest all federal issues everyone in the federal government including the court really so i'm supposed to follow response to the statement of interest if a district court issues want i i don't mean even though the department of justice speaks for the federal government all they call matters i understand but in terms of looking out for that interest i think the we thank you god depend turman it on the merits that's what the public interest is decided let the chips fall where there may we can say thank you for your statement and on interest but we think you're more interested than you realize and we're going to invoke the political question dr i think with the court can say as i think that there is a public interest in avoiding separation of powers problems so it's the public interest d in avoiding political question problems that result in a violation of separation of powers principles ok we take a bunch of your time in the first case gave us about to time so if you've got something else on  for at least as takes a owner interrupted because i came to prevent my colleagues for interrupting you but i won't interrupt you for the next four minutes if you got something for you on the merits of the negligence defense raises a question about whether the navy failed to anticipate mr mcdaniels reaction to the odd damper malfunction it's beads an excess of v a nothing more and nothing less i think that this is issue and that's an inappropriate effort to to box in the cabin in the issue as discussed the nabi itself called mr mcdaniels response to the audience from our function in normal attempt to deal with the ja damper normal forseeable experts for the defense indicated this was a normal expected attempt given that there is evidence that what mr mcmahon yle did in response to this emergency was expected was foreseeable i think the real question becomes in light of the evidence that was forseeable did the navy make reasonable decisions or negligent decisions about how to operate the mission about how to train and test and certify though folks in the air crew who are participating in that mission that's what requires particularly in this  jurisdiction that involves comparative negligence and proportional liability and evaluation of whether or not light of the fact that there is evidence that it was forseeable the way the pilot respond was it reasonable to select the business jet in order to promote certain operational objectives as opposed to using a tactical aircraft was it reasonable fly that business jet at tactical speeds that close to the ground summarizes the problem with the district court's approach to to suggest that the only decision by the navy had to do with safety when to quantify the amount of the navy's negligence all of the navy's decisions need to be examined that's what happens reports in a liability system whether they're seven percent responsible or seventeen percent or seventy percent or none or one hundred all of those decisions need to be examined to both determine whether the navy was negligent and also to quantify any negligence that reasonable and political question bars to be cation in this nice at first light to speak to the jurisdictional issue we do not believe this court has upheld jurisdiction under the collateral or doctrine i think court has any questions about the application twelve night to yes your honor we do agree with that we that the defendants do dispute a number of the district court's factual findings however we believe that none of the issues that then it's raises implicating the political question doctrine fall within the narrow category of government decisions that are insulated from judicial review regardless of the facts so we can see we can take his statement of facts is is accurate and yours is inaccurate to the extent that it disagrees with him and decide the decisions that are insulated from judicial review we are not aware of a single decision from any federal court applying the political question doctrine to an accident that occurred in a train exercise in the united states and what do you understand them to be are going falls within the political question because i thank you all may disagree about the positions and the predictions of their arguments and contention trial we understand them to be asking for a very broad expansion of the political question doctrine we interpret their argument which discusses language and training manuals too to be saying that virtually any decision made by the military that in any way touches on training or combat readiness implicates a political question doctrine and we believe there is just just no legal support for that position and i might be oversimplifying but it seemed to me that the argument that they were making was the government or the navy made the decision about which aircraft was the speed the altitude those decisions according to them were part of the reason for this accident and because if they're going to seek a contributory negligence or the dividing of it the navy is responsible for at least part of that if the navy had made those decisions and if the navy had incorrectly made those decisions then accident would have happened the paddle wouldn't have had to adjust because they are damp or wouldn't malfunction south i don't know that they're saying everything comes into it i think they were being very specific about these decisions that were made to direct the training that were made by the navy are in fact a question right we do understand that to be their argument our position is that this court i'm even at it except it the the defendant's representation of facts which we dispute but even assuming that that was accurate there would be no political question presented suppose we determine that it depends on the disputed facts what then we believe  that there would be a spirit in that case and that the political question doctrine under certain circumstances could turn on the application we've wasted twelve nine to be a pale because we will have decided nothing and will send it back contingent on what happens to trial at trial which we don't know are valid i just have myself personally have some doubts about this but this is what we're talking about two of nine to be how many suppose for example are we said well it depends what i'll stipulate a binding set of facts stipulated to the detail of everything you've disputed before agree on it submit it to us and then we'll take it from there i don't believe you'd be able to do so he says that some of the facts the district court found are clearly erroneous and both are we have a position that well it really doesn't matter we win anyway but we don't know that we haven't decided the political question issue and what it depends on and you usually don't in a walk a tory twelve ninety two you usually don't decide that before you have all the facts for the reason that you you just keep going round and round and not get the case resolved and the overwhelming presumption is that you review saying that you know political question doctrine the supreme court has repeatedly emphasized that the political question doctrine it applies to a very narrow category of cases but this case is not about a dispute between the legislative and executive branches or about jurisdictionally based immunity that would apply to government contractors as well as to the military itself and i would wish to emphasize nonwhite will because it's a political question doctrine argument is based on in this particular place case the plane was spotted right before the crash flying over a populated area it was seen over a home depot store if the plane had crashed into the home depot instead of into the woods then under defendant's conception the political question doctrine the none of the customers in the store who were injured or killed would be able to recover from the defendants for their negligence we simply believe their decisions regarding training exercises occurring in the united states away from a war zone would only in very very exceptional cases implicate the political question doctrine you don't believe that if it gets to cases going to trial if it does in fact go to trial if a jury is asked to decide the jury decides that the pilot or the contractor was negligent are and the jury's asked to decide would portion of this accident is the fault of the navy for selecting the plane which at some point according to the facts they were asked to select a different plan for mandating that a fly at a speed which was above the top speed that it should have been flying at for asking it to fly at a low altitude for for training reasons because it was the navy says we wanted to see how they would be able to operate in these conditions and you have experts that say that that the speed and altitude were caused the ja damper malfunction you don't think that asking a jury to decide what part of the damages the navy is responsible for for having made what the defendants are going to planes are going to argue is i'm sorry the defense you can argue were bad decisions on the choice of plane the speed and the route that doesn't implicate the political question i don't know your are first of all we don't think this issue would be presented to the jury defendant's under florida law have the obligation to establish the negligence of absent parties and there braithwaite focus on causation issues they have not cited any evidence from an expert or anyone else suggesting that the navy in any way breached the standard of care and they have to establish that preponderance well if they wanted to ok let's go to their their obligation to establish that so by themselves arguing and presenting to the court that the government or that the navy was negligent abused reach the standard of care would that implicate the political question doctor if they present sufficient evidence to know at that point we do not the supreme court and gilgan versus morgan addressed a claim for injunctive relief where the plaintiffs were seeking review of military training exercises the supreme court said the injunctive relief would present a political question but made very clear that our request for damages for negligent military training would present a different issue and in fact a later case was allowed to proceed seeking damages out of this same incident we think that a similar analysis would apply here courts have not fact we are only aware of one case involving where the political question doctrine was applied to a military decision for a tort occurring in the united states where damages were sought that was the distinction is because it happened here in the united states as opposed to somewhere else if for example they were looking at choice of plane speed altitude that happened say effect afghanistan then the political question doctrine you think you say would be implicated it would be much more likely to be implicated cannot say decisively that it would apply or not it would just depend on the circumstances that particular that the contractor was not started clearing military control is a very important factor that was the primary distinguishing factor between carmichael and the man cases and the defendants in their in their implicate political question doctrine neither of those cases arose in the context of a training exercise those occurred in afghanistan and iraq and the authority that is sided for the language about training was this course back tape decision which we discussed in our brief which involved very significant foreign relations issues that are not present in this case and also the supreme court's gillion vs morgan case which i mentioned in a minute ago which we think is actually more helpful to our position than defendants because it made very clear that the military is not enslaved for tort liability including incidents that relate to military training and there is also a history of this court and other federal courts around the country educating clients brought against a military under the federal tort claims act and we cite in our brief a handful of cases that the military decisions that implicate trainee for combat don't implicate political question issues i rely on my brief with respect to the claim that we're asking for an expansion of the doctrine  address the concern that this court would somehow need to resolve disputed facts in order to hear this appeal under twelve ninety two b is not a matter of that there is no need to resolve facts the question is whether or not there is sufficient evidence in the record that would justify submitting the issue of the navy's negligence to the jury the district court itself has stated that there is while the court agrees that the navy's choice of aircraft and speed slash altitude of the mission as well as the language it chose to include in its training manuals or the type of decisions ordinarily committed to the military and also agrees for the sake of argument that these factors may have exacerbated mcdaniels reaction to the odd amp or emergency and thus contributed to the accident it is nonetheless certain that a jury will not be asked to consider whether these decisions were appropriate to the training mission the court in what i just read to you is agreeing but there is enough evidence to submit to the jury the issues of whether the decisions which affect to aircraft selection speed altitude as well as choices made about the content of the training manuals arguably contributed to the accident that gets the comparative negligence in front of the jury without resolving facts only if the district court's findings about th then you can't take us as undisputed settled facts that the legal issue sets a top i think you can where there is no dispute among the parties about those those things i just read off i know but let me let me put it this way that son not to decide the legal issue if we agree with you on the legal issue but we don't know that at the time where determining whether it's a proper twelve nine to be i think it's also enough to decide the legal issue if you disagree with me on the legal issue if not necessarily can demand it depends on what we hope all is well i think the question is if the jury is going to consider these navy decisions are they the type of decisions that are beyond judicial review or as a district court said are they simply safety decisions if the jury is going to consider these decisions we have to predict what your claims and defenses are going to be a trial how the evidence is going to shake out at trial which is precisely what the courts have done in these political question doctrine cases over and over into this painting the defendant indicates i'm going to make this defense heck some of the cases answer gets filed and the defendant says i intend to raise contributory negligence fits taylor is that case out of the four circuit and based on that alone it was enough to say that under the portion of liability system we'd have to second guess maybe decisions here we've set out an affirmative defense under the fabray rule in florida set forth the evidence indicating that these decisions have to be the navy's decisions they garden variety safety of flight issues that would apply to the flight of a cessna one eighty two equally we submit that it's not even a close question on that but i don't believe that the court has to