is the elements of duty under the negligence claim the reason for that is because we're claiming that the usa had control they also maintained designed and kept up the road  s control then you would have a good story i think in terms of what happened here but don't we have to get past those more technical issues first and that is it was control the road good  court below looked at it as a factual subject matter jurisdiction and challenge as as opposed to official where we just look at the pleadings under the factual challenge the district court in actually the defense relies on this court's decision and say fair for everyone versus myer the one point that i want to make on that on that case when this court decided that this record heard evidence  your hearing and heard testimony from twenty three witnesses in this case we heard testimony from from one witness and we did not have an opportunity to cross examine that witness at all i've got a question as to what you disputing or what you would hope to discover if you were allowed further discovery are you in any doubt or are the parties in any doubt as to where this accident occurred in relation to the line between the roll part of the road that's actively managed by the federal government and the part of the road that's actively not managed by the federal government or is there some dispute as to where that action took place in relation to that line there is your honor why was that not just build it in the district court because as i read the pleadings in the district court you want really making that argument yes around us with that point i was just asking the court to give me the opportunity to even inspect this this place it's a closed section of the reservation so the appeal is only one that has access to this place we were not even able to get experts out there any want to look at whether or not this police witness was correct and make it so just to be more concrete then in your view scene of the accident was close enough to the divisions between ownership and control to raise a factual issue  nation so instead of sort of the court relying on the actual court documents that either me the u s responsible for for the for maintaining designing and up keeping the road they pointed to other other material that i think i believe is not relevant to whether or not the bureau of indian affairs was responsible for that road is is on that inventory and we do not have access to that and i still mean we could get past the fact that they are it didn't comply with the technicalities of rule fifty six of the because in this motion on jurisdiction was really converted to a summary judgment motion  what precisely is the discovery that you would seek at this stage if you if you were given the chance so we would first of all look at that inventory look at that at once one of them is and i saw this in your briefing here and in the district court is that because of the relationship between the birth of any affairs in this entire road the bureau of indian affairs should be held responsible such act comes into play and then there's a second argument that says well even if the entire road is not within the control would be a for purposes of the federal claims act part of it is is that second argument that may be a winner for you depending on where the accident took place but it's that second argument that seemed not to be made in the district court and is made only partially here but that's the only argument seems to me in terms of my own view of the case that's a then the u s is there's your section in the end there's a duty right but not on my view would depend on what portion of the road to be taken over because part of the road they have left of the tribe and part of the road they've taken over the only basis for us assuming that the part of the road was left to the tribe and part of it was the us is is this one witness's testimony and again a very limited information without the opportunity of being able to cross examine him so what we are main argument is that we we need to find out who was responsible for putting up these these signs our second argument is your honor pointed out not really use beyond beyond looking at a at a factual attack on as far as the subject matter subject matter jurisdiction motion whenever the merits of  case are so intertwined with the issue of jurisdiction in a case we actually go back to the standard of a facial attack on a subject matter jurisdiction a motion to dismiss in that sense the allegations of the  here basically under the virginia state law they were looking at whether or not an employee of the federal government was acting within their scope of employment when he caused a car accident so the first question there was jurisdiction if they had if they did have had a duty to my client if they did then jurisdiction attaches subject matter jurisdiction attaches against the u s if they did not have control over did not oversee this road indeed they do not have  remand the case so there could be some modicum of discovery before any more nude motions were for what specifically would be the discovery that your client would seek and with whom so we would we would seek the the inventory that lists the roads that the bureau  affairs is responsible for maintaining we would also ask for any contracts that govern the relationship between the bureau of indian affairs and tribe as it relates to that road we would also seek discovery to get people to actually see where this road to happen where the curve is and determine who was responsible for control of this road so that those would be the main things we would we would be looking at  then why could your client either not present such information by affidavit at the time of the dismiss motion or could they have presented a good question or so that the challenges that we had are hands tied because we were not able to go into this road on to the section of the tribal it's a closed section also the  posted anywhere else they have this inventory so this is this is a discovery that we were looking to get right away but we did not get a chance we basically the just record decided the the  issues based only on it and affidavit of the witness that the pelly put forth and we did not have a chance to cross examine him so that there the reason we were not able to get that information is because it was in the procession of the of the it was resolved on the motion with the affidavit that's correct the other side then did you have oral argument on this no your honor we asked for or you meant we asked for an evidentiary hearing that would have at least given us opportunity to cross examine the witness but we were not given that opportunity thank you and analogy that comes to mind is when a child does not clean his room and he's trying to prove to his parents that he did but he does all that allows parents to go into that room there is and he you know he relies on on pictures of him cleaning the room from weeks before this is so this is this is kind of similar to what we have here i wish my kids were so clever so that's not a while since my kids were that age and we're just looking to take a look at this room we're just we're just making want to make what he did in his response to the motion to dismiss was a suggestion that said discovery would help me determine who is liable in the cases that stated that general level of generality that's probably right he  has a stablish that the burdens on the party seeking discovery to put forth sufficient facts to show that the evidence sought actually exists and this court went further i'm sure the evidence does exist that will tell us where the accident occurred on the road and where the line on that road is between the part of the road for which the government is taking responsibility in the part of the road as left of the tribe i'm sure that information exists i discovery was properly denied or plaintiffs state only they believe discovery will enable them to demonstrate sufficient california business contacts so i start thinking that you're casually down to what's happening the listing of the road on the national tribal identifies that the location of the accident after reviewing the police report was in the closed area of the akamai reservation right but here is kind of the conundrum and i'm sure you can appreciate it i read through his affidavit and he has the tribal resolutions we don't have the tribal inventory sheet for us to look at and he says well this is what happened this is where it was it was a closed area and your colleague here says you know i can't even go there to find out i can't get this information in the abstract i can only get it in discovery so why not have all this turned over and then you'd have a real summary judgment maybe misunderstanding some of the facts they're closed in the sense not open to the public but as part of the closed road under the control of the b i it is not and i think that's where the t resolution is used to say the gate marks the dividing point between that part of the road that's controlled by the and that part of the road is left entirely to the tribe i believe that's exactly correct i believe so where do you know so i believe so i do not know what is in the record to tell me that that so resolutions are there other resolutions are those really the definitive documents that show you the control and it's kind of hard to think that a plaintiff has any ability to contest those maybe they're incontest to understand that and people experts you're usually right people make mistakes yes but this is a fairly simple factual matter of whether the road is if it were such a fair simple factual matter why are you resisting handing over the documents by which of the other side you could check we're not resisting it was never looks the way you're going all the request was never made below that for me is the problem that is to say what was requested below was requested really based on a different theory what was requested below was documents that would show that the entire road the rectory under the control of the b and that left the tribe was sufficiently under control would be to be i was responsible for the entirety of it i mean that was very below and there was no specific request that said i want to know where the line is between those two portions of the road because i've got a much better theory with respect to the part that directly and completely out of control or sufficiently out of the control to be that request was not made in those terms and a district judge not having it made in that way said you washington state opens records review so the police report was available to everyone and i suspect although i haven't looked at the website at the acma nation operates but i'm sure it shows where the coast area is so it's easy to determine whether that road the well i have never found anything easy to determine when it comes to tribal lines and jurisdiction ok so you're saying well he knows where his client knows where he was that he was inside an area with a gate ok yes so let's just take that as a given but it probably doesn't answer the ultimate question who had control over that you might presume once they tried given that gate but  we don't know that we have the affidavit of course of the engineer so it seems to me it comes down to a question of whether his request for discovery was too vague and therefore outside the rules or whether it was enough to require someone to turn over some discovery is that really the bottom line here yes we we believe that they request wasn't even a request it was a suggestion but that it was too big to withstand what this court has said in the past about what's required even on a motion to dismiss ignoring the rule fifty sixty motion that's available in a summary judgment we just don't think that there was a request here and i don't believe the court even recognized that that was because it wasn't a motion for discovery council to school if i can interject a question so if the court didn't even recognize that there was a request being made why isn't the just resolution of this case for us to vacate the judgment send back as the court to consider specific requests why are we having this giant debate over the theoretical possibilities of who's got the burden to say exactly what this context three reasons first of all we me i have a i have a declaration i read that but that's just his view and i can't tell because i don't have maps i don't the other side didn't have a chance to say well you know he made this mistake i mean it's uncontested on the current record i get that but there are other things that i would expect to have in the record if i were really going to be confident in the answer we were confident in our you know our in the motion we brought because we think that there was sufficient evidence for the court to rule as it did why didn't the record contain this tribal national tribal road inventory showing this road