unduly generous interpretations of the exceptions to federal tort claims act liability and advise that courts must examine those exceptions precisely in accordance with their wording and the purpose of those exceptions and that's what court must do here today hear the government's motion to dismiss plaintiff's claim should have been denied because the government has failed to show that its plaintiff claims fall under the discretionary function exception for two reasons first the government has failed to show that it made any decision at all to stay silent about the threat that stephen and us i'm sorry that kevin downing pose to the workers  would you mean by a decision to stay silent they made a decision to tell the employer of your client's deceased and made the decision to post additional guards on the floor where the department of labor and its offices and then the question is whether that was a discretionary exercise that that was designed to protect against a threat of violence by a person who was liable to go postal yes your honor this is a very important point first it's important to set out at first that the government was in the unique position of knowledge requiring as a part of its contract that the threat be communicated to individual gods now so once they convey it to the security company they are not the only ones it possession of the information the management of the security company your clients the your client's employer the deceased employer knew it as well but but the real question is whether the discretionary  handle this threat by hiring this curity company and telling them the nature of the threat comes within the within the exception yes your honor and here it's very important to point out that plaintive does not conceive and does not allege anywhere in its in her complaint that the government did tell f j c of the kevin downing threatened director to paragraphs twenty seven and twenty eight of the complaint it's the it's drafted very carefully in part of twenty seven we allege that the government was aware of the threats and asked of jaycee to post additional security at the department of labor offices on the eighth floor and did not in paragraph did they tell them why and we don't know at this point your honor we have not alleged that they did and very importantly in their opportunity to submit a factual declaration in this case the government did so and was also silent about whether they told after they see which i think in titles us to be negative  if they made a decision to ask for additional gore the floor office why isn't that a decision that they made because and doesn't that imply that  they made some assessment of what are we going to do about this answer we will ask for additional security post at the floor yes your honor and yes there's a negative inference that they decided that they weren't going to do anything else so what our complaint alleges is that the failure to warn was the negligent act in question and the supreme court has made it clear that courts have to examine exactly what the negligent acts being alleged is and whether that act falls under deal with failure to warn and say there was a decision that they wouldn't do that and that's a policy type decision what's wrong with that analysis or why doesn't it apply is that analysis wrong  and if not why doesn't that apply here it depends on the case there are some cases that the district court relied on that are in opposite which we could discuss but i think what's most important for our purposes is that this court has addressed very analogous case the failure this decision and this court held that decision that the government's failure to warn of a known threat could not be did not implicate policy with central about that decision that is analogous here is that similar to this case that case involved another agency not the federal government that was overseeing the day to day operations of the lab in question and yet still the court found that the government's failure to warn was not protected by the discretionary function exception because it could not and did not implicate public policy and this court emphasized point is that your client your clients deceased should have been more yes your honor and that the government that's because your clients to cease was at that  desk at that horrible moment but on the other hand who who is at that desk at any given time is something really only only known by f j c based on vacation  all the people in the building who are doing security in a federal building that's a lot of people how are they supposed to know who at any given time is going to be at the desk or do they tell everybody and cause panic in the whole building that they expect some not to  arrive who has a desire too much to hurt people in the department of labor well as we've said the allegation here is that the failure to warn in general about this known threat that the government was in the unique possession of the standard as doesn't matter whether they actually balance this against that made a complicated decision what matters is the exception applies where there is room for policy judgement so why isn't there room for policy judgment as to whether the best course of action is to post additional guards at the eighth floor where the best course of action is whether they did it or not to just tell the security company and let them decide how best to handle the threat or to tell each and every security guard in the building or to post a general announcement to everyone why isn't that decision of which course of action to follow something that allows room for policy judgment among other things balancing the risk of panic versus the risk of alertness your honor it whether it involves policy judgment is the government's burden to show and that is why so many of these cases are decided at the summary judgment phase so whether they did make a policy judgment has to be determined no no no that's what i just read to you we said it doesn't matter whether they did make a judgment that was in the elaborated policy judgment the question is whether they the decision that they made was a decision that allows room for policy determination yes your honor and why isn't that why didn't they  and i thought that's what the affidavit that the government submitted attempted to show and you said in response i thought that that's not good enough because it doesn't show that they actually did balance all these considerations i have i have a number of responses to that so let me just take them one by one first let's talk about the a specificity so the spend as a citizen was decided prior to this court's decision  court's decision and two law on this so in court colthurst this court held again that only quote considered judgments are protected by the discretionary function exception and in and rely on as again we see that it's that it holds that the failure to warn did not implicate public policy so that's the first distinguishing factor also in the specificity decision this court emphasized that the discretionary function exception does not apply where no public policy is implicated and finally it's very important to look at the context of the gist of the s best this decision that was a question about waging war the area in which the executive is given the most deference in its decision making capacity is when the government is acting really at its peak policymaking function in deciding how to wage war the whole point of the discretionary function exception is to protect against judicial second guessing of legislative an administrative actions and decisions that's from the security at vulnerable government installations more toward the war and of the of the spectrum toward the the the other because the government here was acting in its capacity as the landlord of an office building that's what this this building was it was an office building for federal or federal workers and the liability here would be the same if it was a private landlord and that's exactly what the federal tort claims act was meant to do it was meant to allow the government to be liable for acts of negligence when it is acting in its capacity similar to an individual or a commercial actor and that's the important context that we have here and back to perhaps misreading of your complaint that prompted one of my earlier questions i look to paragraph thirty one we're feeling allegation is upon information and belief but not had not been given that further instruction to warn mr camera and the salvation is pleaded only upon information and belief so i'm i'm a little concerned as to whether you're alleging that g s a and  well i didn't tell f j c about the threat or that they did but they didn't tell them to warn mr cameron and why i want you to focus on that is i think that if they told  didn't tell them to tell each employee you have a more difficult policy argument to make if you're arguing that they didn't even tell f j c then i'd like to hear what your your argument is on that and also have you explain why on an information and belief pleading over you know what is it almost fifteen pages make that clear if that's your contention that the real and they're negligent is that they didn't even tell the people that they the that they employ the company they employed what the nature of the threat was and no policy reason could justify that help me out with what you're claiming here and it's a very good question and i think it's really important to the extent that the the question of what the government told f g c to the extent that that's the linchpin of this discretionary function analysis i don't believe it is but to the extent that this court believes it is and to the extent that it was relied on as such by the district court who improperly extrapolated from the complaint an allegation that after he had been told then this case really needs to be remanded for discovery to determine exactly what was told to  was only within the government's possession this was your client's employer i mean in the aftermath of all of this you don't know whether the employer says it was told or wasn't told that mr the threat that's right around and we don't know and it's important from the the government had the opportunity to submit a factual declaration and it did so and yeah well it silent on whether the government told after you see about this threat and i think the only way to read that i correlation is to draw the negative inference that it did not tell of j c and again to the extent that this is important this will be fleshed out in discovery and should should the facts arise that after you see was told the government is welcome to bring this to bring this claim again at the end of discovery unlike say qualified immunity or you say that that goes to the question of was there negligence in other words if on the merits the question of who is a landlord had a private security guard company and the lamb board told the security guard company you know we've got this guy we think he's a threat and you know you should be alert to that and figure out what if anything you want to do about that in your expertise as a security company i'd imagine there'd be a pretty good case that there was no negligence but we're where asking is a slightly different question here which is about the application of the discretionary judgment standard and you know i think that also goes to the question of if what the government decided to do was simply to ask their security company to put an expert guard at the eighth floor and not tell them exactly what for and not tell them and by the way warn everybody that you employ give them the picture of this guy or something was that a judgment that allows room for policy determination which is a different question than was there negligence you see what i'm asking i believe i understand your honor the government bears the burden of showing that whatever actions it took were grounded in considerations of public policy and it has failed to do that it's factual declaration that's what i'm wondering about that's why i keep going back to the asbestos formulation that you know andrew lowness is a case where the guy's boss basically told him go in that room and do these functions and didn't say but watch out because there's a risk of getting rabies if you don't handle it handle with care and i mean isn't that the basic scenario there i don't believe so actually around are the c d c that the government entity that was ultimately found liable in that case  was providing the strain of rabies for the experiment but the experiment day to day was overseen by a different agency a state agency that actually the government ended up bringing in as a third party to that to that lawsuit and sued for contribution which of course the government could do here as well and so it's similar to the case here them to if you thought that there was some negligence on the part of the contractor or not there is a workman's compensation claim the right of or something so so just like an andrew long as this case the government has argued that because they did oversee the day to day management of the building that that somehow immunizes it but again the discretionary function exception it's not sufficient just to find that an act was discretionary the and reaffirmed that only actions grounded in considerations of public policy are protected by the discretionary function exception and the government opinion is is quite useful here because it sets out as again enough in the footnote following that language on susceptibility it sets out examples of action that is discretionary but that would be protected by this exception for example driving a car right they say that involves uses of discretion every day but that's not the type of the discretionary function exception is meant to protect as we've explained what it's what it's meant for it's meant to protect against policymaking but of course to take in taking the susceptibility language or even the government's argument oddest conclusion one could imagine that let's say a government worker is driving a car and he's driving overnight because that saves the government money not having to get a motel room he just keeps driving to the next meeting and because of his exhaustion he negligently causes an accident that could be susceptible to policy analysis because it involves government resources any government decision is ultimately going to involve government  decision to pick up the phone or send an email though the phone company the phone bill and the e mail bills are paid for by government resources so we can't just be that some hypothetical tenuous line to government resources off whe not some hypothetical tenuous line apply is the question is whether in this case there are real real and substantial policy issues that need to be considered when you decide how to protect place with the threat has been localized rather than then put the whole building in a state of panic but the government it's the government's duty to put forward what those policy arguments are and it has failed to  question is this is something to go to a policy but it's still the guy i just articulated one i don't know whether the government did that the government frequently does things that are irrational but the question is is it susceptible i just posited why is the rational decision this court held in called her decision that it is not enough for an action to be discretionary that the united states must show that that action was grounded in considerations of public policy for the reasons that i explained the susceptibility language is still about being grounded in public policy and we have still yet to hear what public policy could let alone did it ground something wrong with that one the judge jacobs just elucidated as a possible policy consideration which is not just about we don't want to spend the money it's about balancing the desire to be on alert and to provide additional security against the risks that come if you widely broadcast something about a threat that in this case happened to eventuate but with the benefit that we know that with the benefit of hindsight with the benefit of foresight somebody is making a risk assessment aren't they about what should be and again the question is what should they be doing what could they be doing not did somebody fail to consider all the right things but is it not susceptible to a judgment of this court rejected that type of argument in and because of course the decision to warn against faulty lab equipment in a rabies experiment conducted by the c d c was in my opinion susceptible to policy analysis one could imagine if you warn about this dangerous equipment it will be difficult to retain there you've got one person who goes into an environment of danger and we aren't really talking about any and there's no downside in warning him about the danger of rabies it's not the analogy would be warning everybody in the building about the danger rabies nobody's going to work i disagree on or that there's no conceivable downside i think here if if that warning about the faulty equipment had been made the experiment could have been shut down that alter that absolutely w have implicated government resources you reserved a couple minutes yes thank you very much just challenge the government and fortunately we have the government right here court my name is andrew kraus from the u s attorney's office southern district on behalf of the government the events that give rise to this case are undeniably tragic but the district court correctly held that the claims  this action are barred by the discretionary function exception and that decision should be affirmed the complaint on its face fails to allege facts that support a claim that falls outside the scope of the discretionary function exception there's no dispute as we know from that the alleged actions of the government here involved the exercise of judgment or choice and the decisions that are set forth in the complaint are susceptible to policy analysis just two of just one one point that came up about whether the complaint a danger that this particular person is you could enter the building certainly and as to the need for security on the eighth floor although the paragraph does say that following the request which would be the allegation that there was a request for an additional understood that you didn't at least from that paragraph alone and that that gets to the point of me are is the government's argument that its decision how much  nature of the threat was part of its policy decisions about how to address this threat but i think i think the answer is that it's not dispositive whether the government told f j c or not that that would mean though that you would have to say whether it told or didn't told was part of its policy making discretion and i'm just trying to make sure that i understand that you're saying that that if the decision was not to tell them viewing the allegations most favorably to the plaintiffs saying that still falls within your within the policy area that allows the agent to exercise discretion yes your honor because our argument is that the government's response to the alleged threat posed by mr downing as set forth in the complaint the government's alleged response to that threat is susceptible to policy analysis how the government chooses to respond to an alleged threat whatever those decisions might be in this case the allegation is that an extra security guard was requested for the floor the allegation is that an ex or security guard was provided for the floor that the government decision was to take those steps in order looking at this most favorably to the playing of the argument is that i think that whatever decisions you made about how to protect a guard on every floor guard on only this floor whatever whatever policy decisions you made on that the decision not to tell that even the companies that you employ what the threat was is so negligent that it can't be  of the to be susceptible to policy analysis tell us why we should reach that conclusion if there is a lot of discussion about the entry longest decision the key language an entry line is that the government ignored the unsafe laboratory conditions ignored i don't think there's any possible reading of this complaint that suggests that the government ignored the alleged threat posed by mr downing their complaint sets forth various steps that were taken and those steps are susceptible to policy analysis  the possibility exists that there could be a set of allegations where the government perhaps acted in a way that would fall outside the discretionary function exception but i don't believe that that's this complaint with the limits of your argument suppose there is an ice storm and the steps of the courthouse over and somebody slips and falls and they sue the government g s a not me i'm not responsible for this but somebody in the courthouse as soon as g s a there is the government sued for failure to clear the air and the response is made well you know we do clear the ice but we do it on a certain schedul and so many employees we can have working on this and you know we think we did in was that is that a policy determination such that you don't even get to where you would get with a private building owner assessing whether that the standard that they actually used was negligent or not they should have between the more frequently i believe there are cases along those lines where district courts at least have a value weighted the government's actions with respect to maintenance of property and i think they come out different ways based on the factual pleadings or you know perhaps in declarations or whatever it might be hard for me to imagine at a discretionary function and alice is applying in that situation you are in part because various cases have expressly discussed the example of driving a car and how it would be very difficult to see how  traffic accidents could fall within the discretionary function exception even though yes of course certain aspects of discretion are involved in driving every day but that but that is much more of a case of simple negligence or pure negligence rather than susceptible to policy considerations the individual decisions of the driver don't really reach that that is that because driving when you're exhausted outside the range of permissible policy choices i'm trying to understand what principle he would give us to guide at how and how we would decide when the line is crossed and i think that's that's part of it there and i think that there's there's really not an argument to be made that driving while exhausted is going to be a defensible decision but at the same time the policy considerations involved here regarding security decisions at federal buildings and how to respond to security threats present any number of different  there possible choices you could have made short of ignoring it that would not be permissible i mean if you would put on armed guards in the air would you be susceptible to a suit or even is deciding to put guards there but not telling either the security company or individual guards the precise nature of the threat something that you say falls within your policy just the area of discretion closely this is not a twelve b six motion it's a twelve b one motion because it goes to jurisdiction and that means that the government's affidavit is something that can be considered and you had the opportunity to say this is what we did we told specifically address the precise steps taken in response to the threat then why don't we have to consider this on the basis of you didn't tell the contractor maybe that's not true maybe that if that's if that turns out to be the dispositive fact maybe somewhere down the road the government will clarify that but at this moment on this record you know i think the key policy decision that comes up in the nairobi case and in the a ir force base case other circuits the key policy decisions seems to be the one i think it was referred i want to cause a panic but what would be the policy justification for not telling your security professionals the reason you want some extra beefing up here is there is this guy and you want to look out for him that wouldn't put the whole building in a panic that tells your security experts here's the threat go figure it out and i think there are other policy considerations at issue in the film tell me what the policy considerations could be that would justify not telling the people that you've hired to provide security that there is a particular threat that they maybe should be alert to well i mean one one policy consideration that's referenced in the ninth circuit sigman case is a privacy consideration in that case the privacy of the service member who had been discharged sharing personal information about that individual as part of a threat assessment was considered a policy rationale that was guess i mean the policy considerations that were set forth for security type decisions in the federal building a two one varick street set forth in the u s declaration included budgetary concerns agency priorities balancing the need to protect the building that your that's true that the budget concern is not really an issue there i just i'm referring to the policy considerations about security decisions that were described in the declaration decision as to whether or not to inform and how to respond to the threat falls within the rubric of security decisions at the federal building and i'm not sure what the reason would be why they would choose to provide certain information or not provide other whatever whatever decision they make but whatever they do is since it involves a security threat is automatically exempt it no your honor i don't think that's that's what i'm saying i think here there are allegations that specific steps were taken to attempt to respond to the threat that mr downing allegedly posed to the building i suppose mr dowling called up that morning and told his former boss or somebody at the department of labor  coming this afternoon with a bomb to the building and the decision that's made is maybe better put an expert on the eighth floor that would be a security judgment that would be because after all it's a security judgment they made a decision on how to respond to the threat that's what they chose to do and that could not be evaluated by a court or by a jury i think that that's a factor would be harder to argue that it's purely susceptible to policy considerations because of the nature of the response so it sounds like there is some overlap between the question of is it a policy judgment and just how negligent was it what is alleged here i mean and there are cases right i mean that's why there are cases like andrew lowness where there is an argument made that policy considerations apply but there is a court has found that that th e complete lack of response was so negligent as to be outside the scope of a policy a considered policy rationale so and i in a position to say that right now your honor i mean and you just may think that if that had been the record this would be a more straightforward case for supplementation of the record is warranted we don't want to engage in futile exercises you started your argument by saying that's how the papers can be read and since we have a question about that i'm asking you whether you can represent to us that you can supplement the record and want an opportunity to do that for the district court your honor at least you told the employer you are throughout this case we've relied on the allegations in the complaint can you could you supplement the record by saying that the employer will tell standing here today i cannot commit to being able to do that thank you thank you and we'll hear  your honors i want to start just by going back to the dole underseas decision by the supreme court because i think it can ground this discussion and not just isn't it held that the general rule that waivers of liability are construed in favor of the government does not apply to the federal tort claims act so i think it's important for us when we're thinking about this in light of the fact that it's also the government's burden that here we really need to think about what it is that the government is arguing and what they've put forward c i think that's a name of the company the company that they both say you know we had a discussion they told us about it and we made the decision we the company made the decision not to notify the security guards or we didn't think of it or maybe even we actually did tell security guys and what they'd say let's put that one side that there was such a record made would i take it you'd still be arguing that this is about the threat beyond putting an extra guard on the eighth floor yeah they did tell the security professionals about it would that be a policy driven decision your honor i believe that if we come out in discovery and it turns out that the government told after they see the nature of the threat told them who kevin downing was given the photo to be honest we'll be in a much tougher position at the end of discovery when the government wants to renew its motion we're not there yet and  we believe that jurisdictional discovery would be helpful here if your honour's believe that it would be useful i think at this point it makes sense to remand for plenary discovery because i think ultimately the discovery in this case is going to overlap almost entirely with what would be jurisdictional discovery  so i don't think you would actually see it be efficient to break it up i think what we could do is have discovery and if necessary renew this motion just like other cases where this comes up after discovery or it's summary judgment well let's go location and you have a you have a policy decision to respond at that location now if they did tell the guard they didn't tell the company to tell the guard look out for this guy down now that would be very stupid and if downey had penetrated to the a floor and shot people at the eighth floor that would really matter that they they never told the guard who to look out for and what he looked like but if he had gotten off a different floor apartment of agriculture and shot somebody there i don't i i don't i think that's you know something that they don't have to post somebody in every department why isn't this a  well for a couple of reasons first if they believe the threat is real enough to secure the eight floor somebody has to get through the lobby to get to the it floor and go through security there but if you want to  the thing is to get through the lobby to the eighth floor which you're planning to do is attack people on the floor right well but presumably not a person would have to go through security at a mag nominator so hopefully their weapons would not actually make it to the eighth floor so putting the security guard at the floor if you're actually concerned about somebody arriving with dangerous intent might not make the most sense but i don't think we should be a collapsing and everything you're talking about is policy analysis everything you're saying is policy and i actually agree with you but it's policy you know i think your honor to go back to the discussion that we had had earlier if if any hypothetical if we sitting here in the court can come up with any kind of hypothetical reason that threat to our complaint doesn't allege that posting a guard on the eighth floor was negligent our complaint alleges that the failure to warn the frontline security staff about this threat was negligent and the cases that are examining the discretionary function exception look that one i would have trouble reaching i agree or honor and that's not what i'm arguing first it's important to point out that the f t c a i'm sorry that the discretionary function exception is not a new unity from suit it's immunity from liability and that's why we have a different standard than say qualified immunity so if you look at the ruiz decision the court there parsed the each allegation of negligence that the plaintiff made there and to determine which of those actions of any fell within the discretionary function exception and some of those actions that this was at the airport where the young girl and her grandfather were detained coming in from guatemala and of the court in ruiz found that some of the actions that the c b p took were immune from suit but then found that other actions at the c b p took could have no conceivable policy justification even though of course they were within the realm of this efforts to enforce immigration law to secure the border and to you know detain this girl in a way that they could figure out exactly what was going on but that broad and now says that broad policy objective was rejected by the court in the in the ruiz decision as to eke out i don't know to the question of negligence it's the question is whether there were policy whether there was a policy basis for this so for example in the end you want to situation that i think is the most on point decision that any of the parties have cited in this case and that the government has not really distinguished that was the case about a known danger that the government knew about and that it failed to warn the person most directly involved with that threat even though there was an intermediary agency that was supervising the day to day activities of that lab and in that case it was known that that person was going to be exposed to that risk here mr doubt as to downing may never have someone's going to be exposed to a threat and having a potential threat and there are a lot of crazy people out there failure to warn cases always involve the potential that a threat doesn't materialize and doesn't injure somebody so enderle honest if the lab technician had not been infected with rabies we could be sitting here saying well they didn't know for sure that he would be exposed to new government i knew that he would be exposed to rabies in this particular case no one looking at this i believe you know as as as judgment suggested earlier looking at it in hindsight rather than looking forward to decide what you know whether whether  in an exercise of policy decision what should be done about a person who's threatening to kill people on the floor well again we're not talking about what should be done that's the ultimate question on the merits whether the government acted reasonably well all we're asking for is the opportunity to have discovery to learn what happened and to learn what the government told or what it decided not to tell that's what the discretionary function exception is meant to do the discretionary function exception is meant to protect know that even though they provided for our guard the fact that they didn't tell look guard or his employer what they were protecting against quote not fall within the realm of policy and i believe  not the individual that that could fall within the realm of policy i have trouble with you are arguing though that even if they told the employer not telling the individual guard the deceased you client's  spouse that that that that would not fall within the realm of policy yes or no we're arguing that the government has failed to show what policy considerations grounded the decision to stay silent about this known threat thank you thank you