this minute will d take the opening arguments and mr ganns will deliver any rebuttal very well nd thank you and thank you is it minute for minute mismanage can you hear  exception affectively presuming that everything a prison guard does is a protected exercise of policy discretion and immune from challenge this is not and cannot be the last three points where the top st taste  law recognizes a difference between choices that are inherently bound up in considerations of economic and political policy on the one hand and violations of facially mandatory duties on the other and this case falls into the nd category  nd the fact that every mandatory policy contains some x implicit penumbral discretion does not automatically mean that a parent violations of mandatory duties because of negligence and attention are covered by the d and rd tyreese complaint plausibly alleges a violation of mandatory duty because of negligence and attention on the limited facts we know so st looking at these case law categories the case law draws a distinction between cases challenging what was obviously a policy a few choice and cases involving violation of a facially mandatory duty policy into his choices are things like an f d a decision to approve a vaccine or choosing the materials to use for yes your honor so looking at the prison standards of conduct we see that there is a mandatory duty that employees d respond immediately effectively and appropriately during all the major into situations and then we also have post orders that we honor so to respond immediately granted you know isn't the same thing as giving a particular time frame but it has to mean something and to respond immediately excludes responses that can be characterized as immediate so what that would mean is if a guard sees an alarm and simply chooses not to respond for some reason not related to competing duties the now would be to fail to respond immediately now obviously there are competing concerns that a prison guard has for example for example also responding effectively and appropriately so to say that a guard has a mandatory duty to respond immediately isn't to say that he needs to drop everything and run no matter how important that other thing is but it does have some content and that content has to carry carrier responsibility for that guard or else there would be no reason for the guideline to exist let me ask you  respond immediately on affectively to an emergency is a pretty broad direction and depends a lot on what the emergency is and the circumstances with respect to how to respond the time you know the response how many people need to respond you could have a prison riot and three or four inmates are pushing the button you could mean they have don't they have a duty a multiple facets a duty to protect of the guards from escaping to protect the public to protect the safety of the guards to protect property and an emergency in that context with those multiple duties seems to me would require for a fairly broad range of judgments about what to do and what's best to do now whether of guard duty and appropriate in a given circumstances beyond the point it seems to me the st question is whether this duty of falls within this discretionary function don't you agree with that absolutely your honor and so that's why we use the phrase facially mandatory duty and we also openly admit that there is this an implied discretion  couched in the very nature of what it means to carry out your duties really for any government agent and so when you have an example like the prisoner i had or the firehouse loosely you know we wouldn't see lawsuits going forward because a government agent decided to put out a fire that endangered everyone's lives rather than you know running to satisfy the question really is who how far are we allowed to look at the facts of how a guard responded in a particular circumstance if we were to conclude that the duty as framed as imposed on the guards was a discretionary duty giving effect to the guard overall responsibility so in other words you seem to want us to go back and decide any given circumstance was ineffective and i'm suggesting well maybe it wasn't maybe it wasn't appropriate to maybe it was negligent but that isn't the test is that under under the discretionary function the question is whether the function the guard is exercising is a discretionary function and that you have to measure by the nature of the definition of the duty in the overall context and these multifaceted duties of a guard i mean it's it's not just to respond to a particular bell that  so i don't know what you say it appropriate time is five minutes three minutes the protocols require a certain timing so what we have here is a client that maybe he should have been there right so there's that plea that is exactly what we're saying is that there is this discretion to decide how to respond in the best way possible but what that discretion does not include is these facial violations of mandatory duties if it were otherwise than cases like rich from the circuit or a play from the th circuit which this court cited or coulter we would just say well there was you know phenomenal discretion included in these people's duties and that means that the discretionary function exception just applied and case is over but that's clearly not the intent of the federal courts kling's act which was to create the pliability for this kind of negligent violation of duties and that's what the birth of a test is formed around is is there a mandatory duty and if there is are people violating it without some hours policy reason so we're not saying that the bureau of prisons or that the cards can come back and say you know look i was exercising permissible discretion absolutely they can do that but what they can say is d someone in my position might have been able to exercise discretion and if the facts were a certain way therefore the discretionary function exception applies without alleging any facts relating to a policy decision to be made that would be like so the only reason we use that term in the brief was because that's the way the court decided to just sort of give it a name in order to for everybody to understand to be on the same page but it's absolutely the exact claim that tyreese has been making from square one it doesn't really so i'm sorry i think i understand your question correctly but see clear the term negligent card theory is from the case treatment from the nd circuit and so it's not a term that's that's been used in this circuit to refer to that claim but it is the same type of claim that we're dealing with here where it's under the federal courts playing act and the theory of the case is d that there was a government agent who had a duty and they negligent date in question particularly paragraph not being played out most of the facts that are relevant at this point but basically what that does is it talks about i think paragraph sixty six dollars through nine particularly it talks about the order of events it talks about when exactly it was that the assault began when the button was pressed approximately how long he was assaulted after the button was pressed and then it basically states that the guards construing his complaint literally because he was pro judgment records there were no affidavit spy the guards or anything like that correct there were affidavits by the guards but even though this could have been a factual twelve b one it was actually styled as officials well the one so for all intents and purposes correct grandson we can look exactly and that's what we're saying that the district court would be more appropriate to do is how that factual development before dismissing this because this missing it on a legal motion to  poll number discretion that's implied exists means that there is there's really no claim that you can make against a guard for exercising you know for basically ignoring his duties for any reason whatsoever that's the wrong message under the rick that really misconstrues the scripture function exception to the detriment of everyone who under the f t c a is supposed to have a claim for this type of negligence failure to complete their duties and so what we're saying is the district court it's really important that they actually do dive into the facts here because when this court reminded the case the last time the message was the facts matter because this is not a case for just facial dismissal there's actually a potential playing here and so when the district court decided by the court and does not depend on a summary judgment or twelve or factual findings by a jury those facts could be intertwined but traditionally twelve b one to to explore facts to state facts find facts and it doesn't need to go in full discovery if it doesn't want to or draw something we could reverse and say it didn't have enough facts but the notion that you put  handcuffs on the court on some notion that it's like a twelve b six standard is simply wrong under the rules not at all your honor and i apologize if that's what i what i was understood to say what i'm saying is that under current facts and the complaint is true if the allegation is that the jurisdiction i'll get in the complaint are false then there still are these procedural protections that the court really is required to do including this evidentiary hearing or at least diving into the evidence and finding and determining  is these these remaining unanswered factual questions where the government has had to put forward an answer as to whether or not there actually was any policy decision being made or discretion that was the actual size at all and when there is an evidentiary hearing then the government just has to put forward you know it's its evidence or its witnesses and they will be available for cross examination and finally those crucial facts that would that really are necessary for knowing whether or not the d f t applies will finally be out in the open and then the district court can make the decision  and factual determinations will be made and and that's really what was missing in this case is that fair procedural determination of the facts well you can tell us what further factual discovery you would intend to do is not necessarily discovery like the paper the paper swapping sense of the term but that you know tyree would have an option to either cross examine or otherwise get information from the witnesses who at this point have always submitted affidavits no i had the chance to ask them you know what were they doing instead of answering the alarm or or defeat fax from the government where if they're going to allege that they had this implicit discretion to to basically diverged from the policies of responding immediately then and then someone should ask them the question what is that policy determination that you made otherwise and saying because there might be some discretion in certain circumstances every case that alleges negligence simply has to be dismissed and that that you know that undermines the f t c a it makes it useless but don't we are we on the fractional point i am presuming the guards if the guard stick with their story they basically said they saw the alarm appear on the board there and they responded and they responded by getting what two people to come there and they were there within a few minutes now that's their position right right here on air but if that is the grounds for the government to win in this case the say so d i'm talking about the factual issues and other right that's i understand i think that's their story and i'm not sure when if you ask the guard what policy were you doing in the guard saying well i was carrying out my job as a guard and i was responding to an emergency and i did respond and that's where they are they may not say anything different because they are number one they're all consistent and number two there's no room for th m it's a philosophical question for the to ask the guard when you're sitting there carrying out your duties as a guard and you're made aware of an emergency in the prison and you know why did you go there  or what policy were your journey and is that is that the right questions on discovery it seems to me it's a legal question as to whether the responsibility being discharged by the guard is a discretionary  job and of course if it's done negligently that usually doesn't say much because we focus on whether they're trying to do carry out a discretionary job at least from their point of view but  i'm just focusing on the question raised by judge a g that is is there really a factual mystery here it seems to me there's a legal mystery and  course it's a threshold question that the court decides as a matter of the wall and it can take into account any facts that are apparent but if there are more facts that it needs and you think they need more that's argument you can make but i'm not sure it's apparent what the facts would be necessary at this point we have a dispute he may put in some time periods which we're pretty close on we're talking about ten minutes and the guards put in another time period which is a few minutes apart and nobody disputes the fact of the guards came there and broke up the fight what are we talking so the reason this is a little bit jumbled is because there's two distinct paths one is a legal question and the other is the credibility contest so the legal question is whether or not even if everything tyree alleged is true this case should just be  out because the guards cannot have their use of their power are questioned by the court because it's discretionary and that's separate from the credibility contest where which really should be the ground that this was fought on but instead the government filed official motion to should be credibility determinations on those facts those facts should be fully sussed out weight against each other and the terminations made the government by filing a facial motion to dismiss it short circuiting that and making the question whether or not they're applies and therefore there can be no case that is not the right resolution for this case the right resolution is having those that credibility contest finally resolved trying to approach the contest if you have three people looking at an automobile accident they're all going t a different story and they're all honest here you have to use as they didn't get there for ten minutes will it take some time to get there number one to take some time to summons and collect the overcard so we're talking about a matter of some exception exactly but we don't know that this is exactly that is exactly the point is we just don't know if what they were doing falls a purply within the d f a because like play they could have been sleeping snapping or smoking and those would not be defeat that defense but i don't ever alleging any plausible negligence on the part of the government actors so to be clear and the discussion previous to this was talking about this being official challenge about the idea that a cold in the time that i just talked to your colleague on the other side about and i wonder if you can tell me since we have to pinpoint that's always we don't have the officer saying oh no we were there right away we were there at just exactly the time there were two minutes after the the alarm went up according to the disk with the plaintiff's who's allegations weeks up just through here and therefore there  that could be fine they they could be doing other things they could be having another emergency they could have a personal emergency there could be a lot of reasons for but they could also be going out sun having a cigarette or talking to each other and being preoccupied and not not looking and seeing or hearing or thinking that there was a real emergency and that's that was the case how could they get the benefit of this discretionary function chivery alleges he alleges that he was being assaulted for five minutes before the button was ever pushed and then he alleges that after the button was pushed then the other in me continued the assault for five more minutes so  or go out for a cup of coffee for seven minutes after the song so to move to the next point so what we happen to know in this case because of the procedural posture of it all being already knock the answer is possibly not there are situations where if a plaintiffs were to allege appropriate negligent acts against an officer for example they were sleeping or smoking they were eating they were looking at the computer they were doing things that were inappropriate and not in the course of their duties then that would be a situation where possibly the discretionary function exception would not apply to them but the important part here in this case is that the plaintiff never alleged any kind of negligent careless act on behalf of the officers and he didn't just run with the princes know that ok well the plaintiff in this complaint wouldn't have known it at the very beginning he would not have had an opportunity to know that however in this case once the original motion to dismiss was filed and ruled upon by the district court and it came up to the fore circuit the st time the force or case kicked it back for the purposes of discovery so that the plaintiffs could enter into discovery and gathered any information that he thought was appropriate he did that at the end of that and the szell discovery period the government filed arse summary subject matter jurisdiction motion over about almost six years and he is able to represent himself and continue to support for his case he as you can tell through the discovery that he did ask for and he asked for an awful lot of things and he and the government turned over everything that he asked for including the stuff that was security related that was provided to the court for a camera view mr chivery may not have done everything that he needed to do in order to support his case but he certainly had the ability to go on to do that he could have deposed the officers at the time of his discovery a time during the during his discovery but he chose not to do so but the point is that i'm not sure that the court should put a lot of weight in his pro se status because mr chivery has exhibited the ability to represent himself and put forward his case i have to have any authority for that proposition no i've never seen a case which you've said that said the prison was pro se but he's a frequent flyer and they're poor we sligo are his allegations and we hold him to the standards of them being represented by counsel certainly not the case and that is i don't have any case law but i'm certainly the government certainly not making that point that we disregard i think i see so we still give him the benefit of being president we can give him the benefit of being pressed say but there are certain standards that he still would need to be and in this case he would have to at least meet rounds and smoke and drink right except that doesn't bar when he's making his rounds and he sees the light while making the rounds that's what he said he was making the rounds on the b range and as he came to the cell he saw the light at i will point out that you were discussing this issue with each other and this is mike greenberg talking right now and i was not making arguments so i apologize for that and i would respectfully request that if there's a question for me  to to please restate it because i sort of lost it you may proceed thank you and so your honor that this point the government would rest on his brief and just mention that the main point here is that in order for plaintiffs to sue deceit the discretionary function exception he must be able to plausibly alleged negligence is some sort of negligent act on behalf of the officers in this case he was given the opportunity to obtain that information was unable to do so and because of that the case should be affirmed in the district court's decision may drag him to different places in a cell a certain amount of time passed and then very clearly in paragraph twenty four of his complaint which is on page seventeen of his going to the next he says that presents the bill to respond to the distress alarm for in excess of ten minutes very clearly it's right there in the complaint he alleges that present that did not respond personally ten minutes and i want to clarify that second my nd point is that no facts have been considered or found the twelve b one and the fact that somebody says facially and you look at this the court can look at anything that it wants and it can order discovery or it need not a word or discovery but it seems to me to get to the fin the government's motion to dismiss is at joint appendix page fifty and the government very clearly stated in its motion to dismiss that it was accepting the fact as alleged by mr tyreese and in fact and making its determination on that motion the district court did not factual determination and judge you do us a lot of questioning earlier in which you ask if the facts matter and i think judge mudd to your line of questioning is exactly right the facts do matter in this court has made clear that in these discretionary function exception cases the facts do matter in this court decision by the court made very clear that it's determination on a negligent maintenance issue was based on the fact that the court explicitly said that and left open the possibility that under other facts the outcome may have been different your line of questioning about the if the office of the prison officers were drinking coffee is exactly the point of the th circuit meeting the placated which is this very court cited favorably the last time the mr tyreese kids was before this court this court  other courts i mean very clear that the facts are important in these discretionary function exception decisions and we simply don't have any factual determinations because the government short circuited the facts finding profit by filing and purely legal  they accepted mr tyreese fact as alleged this quite frankly has become a credibility contest because the government has not provided any sort of policy based rationale for delay here rather the government has consistently rested on the factual assertion that the prison officers responded immediately and this brings me to another point and that is that even if we have knowledge that immediately might leave some implicit reservation immediately cannot be a content less concept and in fact the government has acknowledged that because the government's position consistently has been of the prison officers responded immediately if immediately had content list then the affidavits of the prison officers can't mean anything so immediately certainly has to have condit has to have some sort of content and in and the government says as i understood their argument or read it had the opportunity to do discovery and you just didn't do it i mean did he asked to take the depositions of the guards d or  mr nickerson or anybody else knew your honor he did not and as judge must pointed out he was pro se at the time and to be quite honest i'm not entirely sure what the rules are in this prison but it was certainly m believe that as a prisoner he was not in a position and would not be allowed to depose d prison guards and that's the exact reason why he repeatedly asked the district court to appoint counsel and his repeated requests for the employment of counsel would not i think given that he was  because the burden is on the plaintiff to establish his case so what specifically the you say is necessary for the district court to make a decision that's not before the court now your honor the the factual determination to discover that needs to be done is simply what were the guards doing my client has alleged that the guards took ten minutes to respond and the officers contention was that they responded immediately and in fact there are actually some factual inconsistency and the officers after this one said that they responded directly to this cell immediately the other said that they responded by telling the st officer about the emergency alarm and then that officer went to the cell so there's already certainly just among the officers affidavits and seemingly factual and inconsistency and that's where the district where we need to discover guards it's your honor at this point that's all my client is really asking for now of course the the government could set forth policy based reasons explaining its delay but throughout this entire litigation that has not been the government's contention the government's contention that that they responded immediately my client contention is that there was at least a ten minute delay in my client's burden and mr braden burke actually conceded that my client's burden was simply to plead a plausible claim and negligent and ten minute delays possible claim of negligence at this point based on how the government has chosen to argue this case it's purely a credibility contest the going to get district court need to find the facts we want to put the prison officers under it either in a deposition or a hearing and that's all my client is asking recognize the very good job you did both of you were very well prepared you made a good presentation we didn't get to see him for i wish we had that opportunity we also are denied the opportunity at this point to come down into the well of the court and shake hands which is the custom of our court and i miss that very much and it would be especially nice to see the two of you and welcome you to the court and hope you come back some again and again but thank