for the tortious conduct of government employees to conduct complained of here is a participation in a terrorist attack by f b i agent which rises to the level of assault under the texas criminal and civil here the executive decides to infiltrate a terrorist cell and secrecy is essential to that and you're not arguing that undercover undercover but operations whenever they go bad don't implicate discretionary choices absolutely not what's the best case that says there is f t c a liability when an undercover agent trying to stay secret trying to identify terrorists unwittingly exacerbates their efforts to do it they're not allowed to issue the vaccine without reviewing the patent application and they do that they failed to show they did that in the court remands it and that's a similar situation here there is broad authority for never undercover agent secrecy is essential but there are a few rules that govern undercover f b i operations they are found in the attorney general guidelines and the d o g which is the f b i undercover operations guide and those those rules give them broad discretion but they do require that they do not participate in an act of violence even with the directors of the f b i as authority they are not permitted to engage in an act of violence under is this agent under a political on rules permitted to engage in this conduct the nd the nd prong is is this is the decision by this agent to engage in this product in this conduct that type of discrete of judgment the violence against innocent americans that's a no no no no it's not about these facts no i know but that the circuits like sutton are souter that's our interpreter and applying it that the one thing that an undercover agent can't do is actively participate in violence that is according to the f b i s guidelines its own guidelines like it has a but aren't you in your brief trying to extend that to be there's an affirmative duty to avert violence against americans as opposed to participating in it not exactly when the trial court says well there's a lot of ways you could discover it's about how and when which is exactly right there there is a broad discretion and there are many ways they could have discouraged balance but the one thing they can't do is not discourage the violence in any way and i don't i don't see circuit law embracing that i see the circuit law saying it's a pretty extreme bright line and it may have been crossed here i'm not saying that you lose but a discouraging violence instead it would seem to me you've got a hot you've got to harmonize one of the acts you've identified that he says go tear up texas and that then he accompanies an arguably does reconnaissance before your client is shot and are you saying that's the intentional toward that's the participation in violence or are you saying he should have discouraged this sell that no no no we're saying that that is the participation and balance what we are just that's our that's our strongest argument i'm bringing up a point about the scour violence to say that we have no evidence the governor is permitted no discovery and what he has done all they have to do is show one way that he discards the violence to escape for example they say they issued at least two bulletins to law enforcement it may not gotten down to mr joyner i'm not i'm very sympathetic to his situation but he's employed by the school right he doesn't carry a gun he doesn't carry a gun he's an armed ok but but bulletins were issued to the police in acknowledge that they didn't receive the nd one and they weren't she has very broad rules and it terrorist and it says by its says that khan all undercover domestic operations are covered by this so i don't think it's a burden some rule to say you shall have participate in violence which is one of the only rules  that applies to otherwise illegal acts for any mechanism for joiner to have received compensation for his injury at all oh yes we asked we asked the court for a pretty administrative procedure for the federal also just all that yes the district court also applied a prong that's inconsistent with the test laid out by the supreme court they only required for the showing that the judgments at issue in this case be based on public policy but  the supreme court and in this court have found that you want to check to see whether that policy is the type of policy that congress intended to protect we have a good press or in this case in this for similar set of facts or your that took place there that were not they could not because they control the the court said this this she said is very strong evidence of congress intent in this case and such and they said if you do have a constitutional court or if you c different it wasn't clear that there was any bad faith at all he was just doing his job and it turned out to be a false arrest false imprisonment case and he did commit that tensional tort but the court was uncomfortable just applying the naked principle of intentional tort and they required something a little more something like bad faith they said something ivins asked something like an egregious misconduct and we don't know how the circuit will treat an assault whether an assault is more of a i would point out that assault is the very tort that the billions agents were being accused of and so maybe it should weigh more toward certain but if this court decides that campos is a better standard where there needs to be something additional something bad faith i would point to the evidence in the record which is very patchy we don't have very much we've not been permitted discovery you see one the undercover agent arrived and was providing reconnaissance for terrorists and was taking pictures of two known victims less than a minute before he knew they were about to be attacked by two men with machine guns and body armor and he took instead of doing anything this f b i agent got out of his car and to start taking pictures possibly video and and let the t is pistol the only weapon and killed both of them that is the evidence that we have right now we have been permitted more discovery that is all we know it's a miracle their life that conduct getting out and filming the attack rather than stopping it rise to the level of bad faith and rise to misconduct but it also is deliberate indifference when we it is which is the prong that this court has had trouble finding created danger now it didn't find it but the element in it that it found was not met in that case was deliberate indifference known victim immediate danger and in other cases that of brussel the same point in this circuit such as a state of ca or doe versus us they found the same probably don't have a known victim it's not a small enough set of people that we knew were in immediate danger or we didn't know the danger was immediate and and then even that's a doctrine pardon my ignorance of i'm wrong about this it's a doctrine of liability say there was no abuse of discretion but we think that here because there was a failure to apply the albert standard as articulated by the supreme court discovery should have been permitted we are weak and we just need more discovery there needs to be more factual development for a proper disposal disposal of this case and then we are asking this court to reverse twelve the one dismissal and find the plaintiff has demonstrated adequate facts to survive a twelve the one motion or alternatively we ask the court to reverse the twelve the one the supreme court characterized the rule as unhelpful and in this context and as apply it run the risk of of defeating the central purpose of the statute i got thirty honor may it please the court joshua salzman on behalf of the united states i want to begin by just emphasizing a couple of key points st is this court has repeatedly recognized the discretionary function this court recognized that in cases like spots and in cases like this all may rd if there was ever a circumstance where discretionary one for some investigative judgments were entitled to deference it would be best one because it involves the discretionary function exception for beds he wants to parse the specific language used in a text message and say that when the f b i agent used the phrase terror up texas he crossed over from investigator well th employee who wasn't armed who was being filmed by an undercover agent as to terrorists get out of a car with machine guns so is your argument the that undercover agent didn't anticipate the immediate violence or is your argument that the agent thought the bulletins warning local police would have gotten to them or is the argument that an undercover national security investor means absolute immunity even as to participation of violence a couple of things your honor st of all we are here on a motion to dismiss so the facts i'm going to describe here are mostly those asserted in the complaint if should move past that stage but if it did there are several aspects of what i'm going to say that potentially we might take issue with the complaint alleges is that the f b i agent was present in garland and took a picture of the security  checkpoint shortly before the shooting commenced our argument is that there is no specific directive that applied and we submitted the sworn affidavit of the acting assistant director for the counterterrorism division  absolute immunity but what we are saying is what that that record of that affidavit establishes the only thing we need for purposes of this case which is that that there was no specific policy or provision in that policy guide in the national security undercover policy guide that dictates how agents are supposed to interact with potential terrorists or the subjects of the investigation they're allowed wheat and for good reason if the catch twenty two if there are directives limiting them at all you're at the same time saying courts unplayed us we can't tell you what they are so two things on your honor st of all given that we have this affidavit and that af accords with common sense that as just as a matter of common sense as as this declaration lays out if you had restrictions that said an f b i agent can't use particular language for example in a communication with a potential terrorist that would impede the ability of f b i agents to win the trust of potential terrorists and to fulfill their important national security mission what about their current if the undercover agent traveled in the car and as they stepped out he said here's your machine gun i do think that that would be a closer case and that would be something we'd need to confront if that happened but but there for work that's what's critical for me if as we write the decision or as we discuss it is what's the limiting principle i need to hear the government at least this is my view tell me that at least the limiting principle is undercover agents even in national security interests cannot participate in violence are you prepared to say that i'm not i think where my hesitation difficult let's say to infiltrate and gain trust the undercover agent decided to shoot the american himself that's produce a painting in violence that would clearly be participating in and that therefore clearly would not be within the discretionary function exemption i think discretionary function exception cases can be difficult in that they lend themselves to exactly these sorts of hype that they have but i mean i read all the circuit opinions on this on undercover investigations and i frankly you probably know these cases th fast and furious gun scandal or john connally going to jail for ten years for infiltrating and helping the rifleman in the mafia those to me implicate national security just as much american citizens were killed because of undercover behavior and circuit courts at least and dick to say that's because the undercover agent participated in violence why would we not expect undercover in this context to have that seem extreme limitation so well what i would say is st of all we are dealing with a separate set of policy guidelines because it's a national security as opposed to a law enforcement investigation you do have this separate set of policies in place but i want to get into that was against mexican cartels across border national security even if your honor wants to reserve that and i think you should on the facts here all you need to resolve this case is to say even if you wanted to assume that there was a provision that said you cannot commit an act of violence that if the f b i agent actually pulled the trigger that that would exceed some sort of limitation that's not nothing you need to write to resolve this case needs to address that circumstance well that's important though that does still leave some room for her for accountability national security can't just mean federal courts you can't look at this at all that's fair enough your honor but for purposes of this case i do think it's important to look at the specific facts that are alleged the allegations are one text message was sent ten days before in advance that said tear up texas that mr uh that the undercover traveled with mr simpson in soofi in a separate car garland was physically present and took a photograph and whatever you think is over the line i think to the extent that discourse has repeatedly recognized that you need to give a wide berth to investigative judgments and you need to particularly in context where national security is at stake particularly in contexts where you want agents using their best judgment and not operating in fear  physical presence i don't think gets them there either and what do you have that you have the suppose it in stick ation of sending a text message ten days in advance that said tear up texas to somebody who was already in contact with a high level ranking isis official in operations let me talk this through from a different direction why would it chill the operation to simply pay damages when you do the officers can do what they want is this really just another way of getting a cop social system for people who were injured after nine prison riot which is a published decision of this court what this court has recognized is when you have people in the heat of the moment trying to make their best judgments about how to proceed you don't want them operating in but that's the officers are not going to be personally liable in any way that that's true in every effort to not talk about qualified immunity or i were talking about that have to absolutely your honor but that's going to be true in every f t c a case and yet this court has repeatedly said that these are not the kinds of in cases involving things like prison riots and you can in things like national weather disaster emergencies in cases like spot and in freeman of this court has repeatedly found circumstances where the very sympathetic who might say we want to compensation compensation system for like an freeman that was hurricane katrina victims as i recall you may have folks who you really think it there were there might be policy arguments in favor of having a compensation system in place but with this court has recognized this the f t c is not that generalized compensation system just because there are folks who have been injured in the course of government operations so much for joining us go to congress very specific directive on point and at the nd step that recognizes things like national security an investigative judge means or in the heartland of one of the kinds of discretionary judgments that congress intended to schildt thro out they're asking you to actually go much farther than any circuit has ever gone before because they're not just asking you to recognize that cause of action they're asking you to say that it provided such a clear directive that overcomes the discretionary function theory at a bare minimum doesn't provide such specific directive that it would overcome qualified immunity and by analogy i think it would not provide enough specific directive to satisfy the discretionary function  that being said if the court were already concerned to come up with limiting principles of course your honor so the key precedent on point is is the campos decision from a couple of years ago and the one herschel point that campus campo says is under certain agreed to circumstances the enforcement proviso may may trump but the facts here again this is not the f b i agent pulling the trigger this is the f b i agent being present in case and what both of those cases recognize is that the discretionary function is not just an immunity from liability it's an immunity from suit and as a result you don't just have this perception in favor of discovery the plaintiff bears the burden of coming forward with reasonable grounds for thinking that if that discovery would on earth a policy that could overcome the discretionary function exception and i think the district court quite reasonably concluded here  as i recall but nothing about whether or not this under covers actions going to texas and filming were approved there's nothing about that your honor there is there is some stuff about the bullet but not  approvals because because we're working primarily it with with the limited exception of that of that dishonored declaration i referenced earlier we're working on the facts in the given that they rested on their brief for the antiterrorism make act claim i think was this is a they just used bad discretion in the way they perform their duties which they were allowed to do that's different here where we have a bright line rule with the with the as to the waiver argument the court in campus has made clear that the law enforcement revise it was not an independent argument it's part of the nd prong of albert and even sutton which is pretty said this is this is has to be read together with  that with a discretionary exception it's not an independent argument congress added the law enforcement in response to the events in the business case and sutton took that as a very strong indication of congress and tend it to the extent the government proposes that we cannot cite circuit precedent that was before the judges for example the judge for example sutton because we did not independently raise the law enforcement proviso which it was told us not to do then we would point to this u s supreme court precedent that neither party can waive subject matter jurisdiction in henderson versus shanna key and other cases that we said in our briefs so if your main line is the policy guidance about not participating in violence what is your strongest act communication between the terrorists and you see one immediately before the attack but we believe that it must have happened because your view is a communication of encouragement would be participation communication and physically doing are providing reconnaissance for where do you see a circuit court having applied i mean they are all saying this is just undercovers discretionary and then they say but it wouldn't be have you ever seen actually a court not apply that scrushy function to an undercover agent domestic undercover because of participating in violence no you're wrong so it always seems to be well that's the catch all which is an important one but but that's why i think it's important these questions to you about what step was not merely failure to discourage but actual participation it's not a tax it couldn't be the gun given to him five years earlier right wasn't five years so it's got to be that what was happening immediately down there and garland yes although we don't know where they got their other guns for we have from we haven't been permitted news coverage but you the participation is the he was there with them he travel with them they traveled from arizona he traveled from we don't know where he lives and they arrive there within thirty seconds and he was providing he's getting questions from his handler his isis handler how many how many law enforcement is there directing to the weaker back entrance are there snipers is the f b i present we don't have evidence about how he responded in a problem you have is the sounds like a prototypical act of discretion and what you're throwing at us is a policy guidance that is itself far from precise we were not even able to conclude precisely what participation here even means becomes moves out of the realm of vagueness and moves into we really have done this i get that we have tried pulling out a gun and shooting that's clearly participating you don't have that here you got up several steps removed but we do have an arriving right before them and taking pictures and providing reconnaissance at what point is part is do we reach the but participation is the bright line the i want to point out one thing we it's very hard because the lights on i'm sorry that's right but make your final point the court and sutton said this in struggling with this question the threshold question of government immunity is not always answerable in general pleadings trial courts are not to deal with this on motions under twelve b one when the proper disposition of the case requires some factual development by the parties they can also argue cases submitted that concludes ar