that there are four issues remaining in this appeal for decision whether or not the united states has sovereign immunity for the claims against it in its own courts for claims that it violated the norm against extra judicial killing whether or not the plaintiffs are entitled to equitable tolling of the statute of limitations on their f t c a claims whether or not there is a viable biffin sql aims against one of the defendants former chief of the border patrol michael fisher and whether or not the other defendant the agent who pulled the trigger agent diaz is entitle to was a type of the summary judgment on the question of sovereign immunity i'll of course do my best to answer that any questions a court has on any of those issues but if i had my druthers i'd developed that the bulk of my time to the question of the a t s immunity with respect to whether or not the united states has offere immunity to a claim of jews cogan said violation litigated against it in its own courts there are three undisputed propositions that we start with could you actually help me back up a bit and explain your view of that in this case and how it affects this a t s claim because i'm very confused about whether you are saying that the that your client was throwing rocks or not throwing rocks and how the iraq policy affects your view of the facts from your brief i couldn't tell like whether you are saying there was no rock throwing or there actually was rock throwing and somehow the a t s claim is based on a policy about rock throwing so the a t s is fundamentally premised on the unlawful policy of the border patrol that they would the agents were entitled to treat the throwing of rocks at them as per se lethal force but then justified the agent to use deadly force and in return we say that and the claim is that requires there to have been a policy and do you need it to have been followed in this case i mean what if because you also sort of say he wasn't throwing rocks i think right but our expert says and we contend that there are two aspects to the rocking policy one in instances where rocks were thrown to the direct effect of the policy was to in effect authorize the agents to return fire to shoot to kill time this issue with beard was in the government's brief on appeal as an officer of the court i will tell you that the audiotape the first time that there's any mention of rocks being thrown or being involved in any way was after the shots were fired how do we know that how do you know that with theirs and their audiotapes so the discussion of the audio tape that i could find was it ninety seven and it seemed that someone said that the audio tape has the as requesting assistance and saying that there are rocks being thrown are you saying he asked for assistance and said rocks were being thrown after the person was dead it was mostly throwing rocks there's an o i g report t says that castro called in there's an audio recording sorry not hastert the d a s call requesting back up and saying rocks are being thrown and that that's what the recording says you know that if if that's what that says i i was looking at eight thirteen which is what the government cited in its brief and that is ambiguous because it says further review of the radio communication did capture audiotape of diaz requesting u s assistance at stewart's bridge and reporting that rocks were being thrown that is ambiguous the way it is written was that him how is that inconsistent at all with what's on ninety seven how does it become him i'm sorry i'm not familiar with a ninety seven says it captured audio of diaz requesting assistance at stuarts bridge i'm reporting that rocks are being thrown at them this is the declaration that describes the audio recording to the court so unless you think this person who was described in the audio recording lied about what the audio recording said i don't understand where the ambiguity is what well from what you read right there it doesn't give the timing he says would you i mean and i mean unless the cold call is fake is that your allegation that diaz killed your client and then called and said he's throwing rocks i need help the audio tape i'm telling you as an officer of the court the first time there is a mention of any rocks being thrown was after the shots were fired how what you hear the shots what makes you say that as an officer of the court i don't understand the basis of saying that is that we've we have the audiotapes and we've listened to them that there's a description of shots are those part of the record on appeal no they're not they're not because why didn't use those as part of the record on appeal because the government never raised this issue of their contention that there was a quote contemporaneous you could have asked for supplementing the record once they raised it right let me just move on from this because i think we understand the general flow my question really goes to the ninth circuit case of towbar sure does when we're looking whether it's rock throwing are your view that he had a telephone a cell phone or videoing and the question is the immunity in the united states right and we have khobar so that's obviously president you need over you know along with other general president with respect to waive sovereign immunity negligently stopping this ship at sea there's no claim of any zeus kogan zz violation whatsoever the towbar case itself does not discuss or addressed the question of you know what whether they're sovereign immunity when this under the statute but it's given given that there the the issue simply was not presented or addressed in that case so yes there is a broad language but i must say here although the language is broad it's a very we're sort of in it where we take the cases as we find it was the whole the whole analysis is two sentences and it did not address a juice kogan is claimed which is what makes this case different and your position is that ju need a waiver because there is never sovereign immunity for those types of claims well never sovereign immunity for those types of claims against the sovereign litigated against it in its own courts those are the conditions unless congress has expressly granted immunity that's correct if congress purported to expressly grant immunity in a case like that you'd have yourself a really difficult case here it's the opposite think about what the does congress granted a tort claim against the united states for violation of a norm whose defining what the supreme court did do was of course save the a t s as a statute but as a jurisdictional statute so now and that's what they said it is well jurisdictional statute that you the right to come into the u s court is an alien under that statute so they also said of course we maybe limit it to piracy but they were pretty clear so it's hard for me to understand completely why you assume that there's a waivers over munity because an a t f claim doesn't have to be against the government it doesn't have to be against the government the case i don't know why you know you have private actors who do bad things you have governments who do bad things but i'm not sure i on its face you would if there's ever an immunity when that statute is actually meant to cover both private and government actors well to the extent that it covers government actors it congress giving a tort claim against the government act or for to enforce a claim whose whose defining characteristic is that it binds the government regardless of its consent so to say that you can't sue the united states because they don't consent would literally be to contradict the statute and with respect your honor and sosa the supreme court went a little bit further than that than what you described they said it provides  jurisdiction and authorizes the federal courts under federal common law to enforce as federal common law a limited number of international norms and both before and al killing how do we know that this is an extrajudicial killing it was not contested by the government for purposes of this appeal so we start by listing three propositions that are uncontested one are there facts that you need to  show that it mean if this case proceeds well what will you need to show factually for this to be an extrajudicial killing that counts under international laws that use kogan stylish and we have to prove the existence of the policy and so and how do we know that international law says that policy of shooting someone throwing rocks at a border is an international law violation is is there something in international law that tells us that is the stablished yes there are lots of international sources of a tortie that say that a policy like that or a practice like that or even if in certain circumstances a single instance of that is an extradition killing and the united states itself has been when the foremost proponents for the last forty years the last forty years anough or do we need to know when and when a t s was passed whether that was considered a violation of international law i mean the way sosa deals with that it's like something that's been established forever and never could have been contested so how do we know that this kind of factual situation was is in that category so that sosa was cleared to say two things one it's not limited to just the three original types of claims but it says to apply the modern law international law to enforce norms that that are like those in the sense that they are definite concrete universally accepted and again for purposes of this appeal the government has not contested that the norm against killing is an enforceable norm under the a t s nor have they contested that that the complaint adequately alleges that this policy violated that norm and in remember that procedural posture we're in here is no reason whatsoever to understand this is falling within the limited scope of what's understood to be a judicial killing but the real point in the reason we haven't addressed it is that it is so clear that a claim under the a t s cannot proceed against united states that's the explicit holding of towbar plaintiffs invoke the alien toward statute this court in tow bar said consistent with the supreme court's decision and so so no you can't do that but when you do it the language and follow it from our court that says that international law does not recognize an act that violates jews hogans as a sovereign act and we if we well ok let me just stop there how do you deal with that language from sala i think i deal with that looking both at sala and at this court subsequent decision on no i'm going to get all the pronunciations of these names wrong that i mean that doesn't address what it is in the absence right so in the absence they're arguing just kogan style ations in the absence of any act by congress don't have sovereign immunity because they would by definition can't and i don't i haven't found any case from our court that says that's wrong i'm not sure that it's not and i mean tokar says that you need to have an explicit waiver of immunity i mean that's that's always true i mean this there's no kid covers not dealing with   you know that the you can't bring in the fact that you're alleging to use coke and phylicia and there's not alter the scope of official immunity and the court said if we needed an explicit statement by congress in the there proposition as i understand it when you have a use coburn's violation then it doesn't merit foreign official immunity do you think there's any distinction between that analysis for an there's well developed case law that says about when a foreign a former foreign head of state may or may not get immunity and the fourth circuit and i think we noted in our knighted states so even where you could get body that threshold claim there's still a second claim but here you can't get a second point that you've got a clear here you can get behind that first point if congress chose to waive the united states immunity for use coke and file ations it could say so and then you could take that waiver in compensation with the alien tort statute and you could proceed theory is that just by incorporating just tokens violations or some of them into the a t f you don't need a waiver of immunity because it's fundamental in the concept so do you have a case that actually says that that's wrong that considers a just token by omission and says that together i think it's pretty much one hundred percent clear that you can't do that and the arguments to the contrary are really without any authority of any kind and they really if we disagreed with you have you offered any other defense at this point to this claim no not on this appeal you're right and we would have to that what would we do if we disagreed with you on this point i imagine that assuming we didn't seek furthe judgment i don't know what does are there other legal questions i mean it feels a little bit odd to have this big question about immunity and use tokens when it's not even clear what the government's position is on whether the allegations even i mean i'm glad you just come in violation anyway human we never had to take it position we to address and i should say i haven't home through the papers to see if we ever took a position on it so i don't want to speak out of term it's just this one is just so clear know and there's so much authority against it that i really don't see this as ending anything to the world as it currently exists whereas it would be fairly revolutionary to conclude that you could remedy should even be inferred i just wondered because this was not brief since the court's rodrigues decision came out subsequently to the briefing in this case but as we indicated in our twenty a j letter we think that the decision in rodriguez is not dispositive here of the question whether a given is remedy should be implied that the court on the contrary in  thirty seven forty four and the court repeatedly rejects arguments about the reasons for not implying a remedy by saying that there just is no conceivable legitimate purpose since no one that national security concerns involve shooting people who are just walking down a street in mexico in this case extending defense would not implicate american policy because there is no american foreign policy in precinct shootings like this one you know or they've identified no duty that would embrace shootings like the one pleaded here and the court is also very clear to say that when we look at this special factors we do within the specifics facts allege the complaint not cross borders shooters shootings generally so this court's decision in rodriguez does not mean that this case is to well that stuff and what we have here is that the government's position that this this person at the border if you have a dead is there no remedy in u s courts for this and then you say no but the question is maybe there was a strategic decision on the timing of the federal tort claims act but it would seem to me hard to invoke that for an exception and maybe that was wrong to have done that even the proximity at the border so it seems like the answer should have been a maybe i'm misunderstanding yes there is a claim it's a foreign you can file under the federal tort claims act but then you've got to get into the procedural timing while that may be the case your honor if assuming that this wasn't that the agency you seem to be not wanting to say that the reason i don't want to say dr be like like to say it but i can't say it because of the supreme court's decision and carlson versus green which indicated that the availability of a  now but we don't think that that itself is squarely an argument we do think that the design of the f t c is a strongly suggest that a remedy shouldn't be applied here  you know this is core border protection and this you know we're right at the border you know we can argue about you know the you know well you know what about the facts of this case but protecting the border and the considerations apply crippled the border or both a new even remember their first suit like when they finally file suit at all it's already passed a time when a business claim look at this somewhat they like i mean i think it would be sort of out of time no matter what but by the first time they got the court to assert their business claim the time for pesah for the following the f t c a suit had already passed so they can come in like out of time and say by the way the reason i was in here earlier is because i was thinking about filing th just very briefly your honor so i want to touch on the charming betsy cannon of construction the charming betsy says that a court may construe federal law whether state or whether statutory or common law to conflict cannot construe federal law to conflict with international law quote if any other possible construction remains that's the standard so yes there is  of statutory construction that says generally you don't construe statutes to waive sovereign immunity there's an offsetting canon of construction here that charming betsy can and the supreme court has reaped repeatedly made clear that the sovereign immunity cannon of construction is just that it's one of a number of tools in the tool kit for construing federal law the other tool in the toolkit that's applicable here directly is the charming betsy the statute to assure the world that the new republic would govern itself in consistently with international law and so i think that clearly the directly applicable canon of construction here is the charming betsy and i want you thank you runners it's been well briefed i think we have arguments in mind that very interesting and difficult case and i think both counsel for your argument and also for the