bottle that's granted thank you this matter is not your typical federal tort claims act case this is a child abuse case you're asked to decide whether or not the complaint reinstated because the government failed to report child abuse and take any other actions that could have prevented the plaintiffs in this matter any eight year old boy from being sexually molested by a colonel of the united states air force gratification and his shouldn't also has harmed point if in this matter requiring him to seek psychological counseling as a result thank you the government and specifically the military is ordinarily entrusted to protect us but it failed with regard to the plaintiff here the government had knowledge that colonel paul waldo was a sexual predator there were three prior specifically breached the the that you're trying to fix here or this matter was dismissed before there was any discovery so one of the things that we have wanted and asked for the sure corporate discovery i identify the persons who had knowledge at the government through the martial proceeding we learnt that there were two other cases and i'm sorry there were three other incidents at two other bases where the government had knowledge of this because all the matters were then consolidated into the court martial however because there are not even any initial disclosures we can identify that person but how i can hopefully explain that the category of person who i think would be the negligent party is the person who eat at joint base fort dix mcguire hill was aware of the reason for the transfer and then placed the colonel into the regular ongoing act the base without taking any action to alert the authorities and it should be noted that in this instance the colonel has his own side so it wasn't just my client who deserve the protection but there were reasons to alert in under new jersey's law the division of youth and family services edition there's other questions that although the government placed in its brief about the federal law that applies for reporting child abuse which is  twenty eight us c thirteen zero thirty one we were not in a position to say whether or not applied because we didn't know whether or not with the knowledge that the government had they had formally launched an investigation because in that instance there's another reporting requirement that applies federally if there's an investigation launched then other the appropriate social service even see is supposed to become involved  some i am because that law the way that it's drafted and applies through the assimilated crimes act is that any person with a reasonable suspicion must report the conduct did you phrase that in the district or the actual child abuse statute was not raised under the now if you didn't raise it in the history or why isn't the way our cases are insistent that if you don't raise something in the district or then we don't have jurisdiction well the the rule and the case that we cited in our brief is that it's a discretionary rowing that the court may elect to exercise its discretion particularly when it's a legal matter here the district court judge made no factual findings he limited his review to the complainants out of this is purely whether or not there's a legal claim so this court reviews the matter to noble and under that basis then it can review whether or not the child abuse reporting law sets forth duty that the government had to abide by but we have haven't we don't have to hear that as long as you have failed in light of the fact that you failed to raise that in the district court is that right you don't have to there's no obligation for you legal matter that the tourists matter and in addition the one of the cases where the government cites to is puts curses merrill lynch where although we were the court considered too public policy basis for its ruling first that there was another form in that case it was whether or not at the very initial stages of the the matter there says about the wisdom of this in this particular instance we did raise that there was a state law point and we said that because there was foreseeable plaintiff then there should be viability the only problem was we didn't cite the child abuse reporting statute but it wasn't really didn't you cite it you didn't use that as one of the bases for dismissal i mean it's not just a matter of well we said it but we didn't sign it it's just you didn't raise that issue right because we believe that by providing that there was a state law basis under the law we would have at least limited discovery that would go to whether or not there was a claim you have but as you say this is a legal issue so why wouldn't you raise the legal issue this discovery has nothing to do with it  legal issue and you didn't raise it won't and therefore hording are cases that say we think that that this although it's a legal issue there's also facts that go into whether or not there's a facts that we knew are that there were three other children and two other military bases bases that the government had knowledge of this and that the colonel was then transferred without a reporting being needed but before we get to j liable party who the reporting act would apply to but that's not what j s is right in j s goes through a rather detailed analysis of why in that case the wife of the subject was engaged in the in the various activity would be in a particularly good position to have known that her husband engaged in you know this kind of activity with the fifteen year old the twelve year old so why why why should we impute to j r s broader application than the supreme court of new jersey well the supreme court said that we have to do a fa fact and now it's for when this ruling would play out and then it then extended the ruling in the fergus case and so the case was not to have a moment of holding to a spouse and here based upon the court mar ing we think that discovery would show that the government officials were intimately aware that the colonel had this this predilection to molest little boys in fact he had been a boy scout leader and there were those well that's how he chose his prey and as a result of that and then the transferring we think that that would rise to the level under j s n for us because under the analysis the supreme court was clear that they wanted the facts by fact basis and that that's also goes to why we think there were underlying fact issues where we should have been able to have  please the court benjamin schultz on behalf of the united states as your honors have already recognized there is no need to reach any of the merits issues in this case given the plaintiff's dispositive waiver and their failure to raise the new jersey statute in the corp well there's the united states and surely you have an interest we all have an interest in complete justice being accomplished now it may well be responses to that the first is because this is a case against the united states i would submit that's all the more reason why this court should be careful about whatever principles and if you look at the way that the f t c a set off it's set up is a waiver of sovereign immunity and it's set up as a waiver o the has relatively strict time limits for plaintiffs to bring their claims or for example when it has to follow the ministry of claim within two years of his claim accruing and then after they get it administrative denial they have only one hundred eighty days after that to come to court so congress has set up a scheme in which it contemplates planet moving quickly to get into court and that protects the government ensures that we have access to the witnesses that we might need to help us prove our case and indeed if you look at some of the allegations in this case you can see that they go  quite a ways in time and so that might be a particular concern for the government so when you have a situation where a plaintiff has gone to district court and then has an articulated the theory that they now want to rest on in the court of appeals that prejudice is the government because we've had to go through all these district court proceedings and the delay of them going to the court of appeals and if this court within to remount that is not all that different then you know sort of like a one year extension of the statute of limitations or one and a half years and i'm not saying they're identical but my point is only that there is prejudice to the government from the last day and given the context of a waiver of sovereign immunity that would push the court more towards waiver rather than chime from it but i'm sorry  if we can go to another point mr schultz the district court this missed the state claims as well that's correct but it dismissed them as i understand it without prejudice so that's what i was asking you how it just dismiss so is that without prejudice your honor when the district court dismissed the claims it was clear that it was declining to exercise supplemental jurisdiction over them and i don't recall the distorts be civically said that it was without prejudice but my understanding say and that's what i my understanding and i don't represent any of the individual plaintiffs i don't want to answer for them but my understanding is that a dismissal under supplemental for declining to exercise supplemental jurisdiction is certainly under the case almost certainly under the case law without prejudice and i think the supplemental jurisdiction statute even has language to that effect i don't have it in front of me i could be mistaken or matz very important because then ms harvey's clients can still go back to them that's i think that's my understanding in fact i think the supplemental jurist action jurisdiction statute even says that while the claim is pending in federal court the statute of limitations is told for know i just want to actually quite understand that's very important but certainly that is the government's understanding is that they could proceed against a private partnership can we just on the merits for a moment talk to me about your view of the inner played  her there certainly honor i think it's important to understand that as i read their opening brief and as i i thought i understood their opening brief their claim try to avoid the sher holding by saying that the only thing that they're seeking to hold the government liable for is a tougher claim of failure to report in accordance with the new jersey statute and if that was the claim they articulated in their opening brief then that's clearly not  tort claim that new jersey recognizes now i thought i heard indications in the argument that perhaps they're arguing for some sort of broader claim and it is the case that j s in at least some circumstances has said that a failure to make a report in accordance with the new jersey statute can be evidence of negligence but the actual tort that j s recognizes is a much broader one it's about a duty to protect from harm in certain circumstances and based on the including for things like the you have to weigh policy decisions and put policy considerations is what yes as it also says you have to take account of the relationship of the parties and if that's the claim that the plaintiffs are bringing then that brings them right square into both the holding of shared and because they're special and this court's holding in c n a because they're not talking about negligence it is entirely independent of the government employment relationship and also squarely implicates the discretionary function exception because now you get into all sorts of discretionary things that the government is doing and it's over example you can imagine how we might defend some sort of broader negligence claim again even assuming that the j s duty would extend to the government which we're not conceding but we might  fend by saying well we didn't report to us but we did report to the division of the air force that takes these investigations or we decided to investigate concluded that there wasn't enough evidence or we decided to investigate the investigate you know took some degree of time and that eventually result in a court martial the point is that there are a lot of things that if the government had a duty that it could have done to discharge that duty and be the government's actual size of discretion in choosing which of those things it was going to do and  problem for the plaintiffs is that they're singling out one particular way that they think the government could have chosen to discharge that duty and they're claiming that that particular way was nondiscretionary but if the broader duty is to just take some action gays the government moves in military person in new jersey a non military spouse accompanies  distinguish between the government's obligation to report as to the military version of the civilian spouse your honor i in either case it doesn't appear that in your hypothetical it doesn't appear that that any negligence by the government would be entirely independent of the employment relationship because in order to trace liability back to the government it seems like the only link there is that the government in its capacity as an employer just randomly has learned that the spouse is engaging in abuse in that circumstance if the plaintiff's claim were simply a negligence per se based on the failure to report in accordance with new jersey law we would agree that it's hard to invoke the shared an exception in that circumstance the problem is that i mean putting aside that there are all these additional reasons why the hypotheticals in this case that's not the point is tort claim they're not saying that it's negligence per se or at least as i understand their point now they're not saying it's negligence per se simply to failure to have a failure to report and if that was their tort claim then the court could very easily resolve this case by the fact that new jersey law clearly doesn't recognize such a claim the problem is that if new jersey law recognizes any sort of claim here it's not just based on the failure to report it's a totality of the circumstances that accounts for among other things the relationship of the parties and issues of social policy and that kind of complicated that balancing and that's what's quite fall squarely into things like the discretionary function exception and sheridan in this court's decision c n a if i could just very briefly talk about the discretionary function exception they want to make sure that the court understands that the argument that they rais their reply brief about the assimilative crimes act was something that they did not raise in their opening brief and indeed their opening brief even said that it was they conceded that it wasn't federal policy to have these things reported and so just under general principles  to think that this particular statute wouldn't be assimilated and that's because you already have a federal reporting statute that applies on installations like military bases and so the federal government has expressed its policy that certain kinds of people have a mandatory duty to report but other people don't and so there are good reasons to think that there is no gap for the a cia to fill furthermore the ninth circuit held in a case called us the blackburn that even when the a cia incorporates state criminal honors to address what judge pollock raised the reason that he should consider the arguments that we raised on appeal is that the plaintiff would be deprived of any other form there is no  he would be he says that you could bring these actions in the city against the colonel but not against the government so the only form against the government would be if this court they're the naval personnel had seen that there was a weapon brandished and that there was a drunken sailor and then they chose not to do anything that similar to here where we believe the government had knowledge that colonel paul waldo was a sexual predator and rather than abiding by new jersey's requirement that they make a report to the division houston family services they just ignored it and transferred him to new jersey so that he could just start afresh had there been a reporting then the division would have launched an investigation at that point the colonel could have been aware ok i can't just start over like i did in in arkansas after i left for ginia i actually probably shouldn't act in accordance with this because i'm now under a microscope that didn't happen here and as a result our client was unfortunately assaulted the sheridan decision went on to say that this and acted let's say in some sort of military room and interrogating terrorists no he was off duty he was off base and that's when this act occurred the fact that he's on the payroll is just happenstance however the duty is triggered because the government has actual knowledge that he's committed a sexual abuse not once not twice but three prior times and now he comes to new jersey he has his own son who's the same age as our client and he used of relevance of her mention that or because the federal government knows that there's another child involved and so they should've taken under the statute the reason is to protect children so if he has his own child that that child needs protection to and under that basis the cause for the statute has followed that we need to protect this children and other children and that's the the point that the reason underlying new jersey's reporting statute exists here it's not just batchelor who doesn't have any children and so there's no real reason to suspect this might occur again here you know that there's a child here that you have to protect and that would trigger the judy so the government would have a duty to follow a water of wherever where wherever he was reassigned right because i know what's going on in that state and comply with whatever requirements that state yes because here the transfer was as a result of these allegations that occurred in arkansas and virginia when they came to light he was  transferred to new jersey and as a result of that they should've been more where that there was a statute that they had to abide by to protect children in that state thank you thank your honor i think very much thank you