solace nine year old daughter and her husband were murdered and she was shot twice and left for dead and the issue before the court is whether the f b i is immune for it's  not to pass on that information to local law enforcement in their vok arizona where the home invasion occurred the second issue is whether the judge abused her just to try to just record abused her discretion in failing to allow discovery into exactly what chain of advance resulted in the failure of the f b i to pass on that information let me ask you because you said so in the beginning i want to be clear about what the complaint is alleging to the theory not to inform local law enforcement know ok that that last item is why discovery was required and under the case law it is the government's burden to prove the applicability of the discretionary function was your theory in the cases you've said that the f b i made the decision you just said the f b i made the decision not to notify well then i misspoke or that my theory of the case is that we were prevented from actually learning those facts which resulted in the information about the planned home invasion not being passed on and as our briefing said there were alternatives that could have occurred you know the first alternative was that the decision was made to pass it on and it got frustrated when the map was negligent lost because we know that the device decision was received the information wasn't passed on the map was lost those those facts are known and alleged why we were frustrated from learning and then we went at some length in talking about the fact that the i file was provided to the defendants for their criminal prosecution but the f b i actually appeared or the arm of justice appeared in the arizona court to prevent the claimants from getting that information the second thing that could have happened is the information could have been passed on to received by agent anderson and then some analog to the lazy guard line of cases he could simply have not dealt with and there's a variety of things could have been  aware because of poor training that he was supposed to go through that analysis he could simply to use the example from coal coal fire or he could have gone on a smoke break and just simply never done that analysis or became a risk they received this information it wasn't passed on and a map was lost we we and we we cited to the district court the policy that we believe required that information to be passed on which i expect to be the to the subject of this appeal but we were frustrated we asked the court to allow us to do discovery to determine exactly what happened and exactly what policies the f b i apply and i want to talk about the policies first the effort at the district court did us a favor and made a particular point of emphasizing that the government took three separate positions down below they initially said in their motion business our discretionary function established by case law and then in their reply to our pleadings they said that under six e two of the of the guidelines that applied in create a discretionary function and then in in the oral argument they said no it doesn't apply because this was an interstate conspiracy case and so it wasn't outside the f b i jurisdiction but even at that time they did not go forward and say hey your honor this is the policy that apply even though the case law and your honor that's the case from the eleventh circuit that says they the government has the burden of coming forth with the policies that appl now that i've clarified that that we think we should have been allowed to do discovery and i want to point out how that ties into the young case that i just of supplemental citation authority understands a different set of facts that this court held just four months ago that a summary judgment standard should be applied when the jurisdictional facts are intertwined with the liability facts because basically that's case dispositive and that's no different than what we argued down below we said you gotta let us do discovery you got to give us fifty six f fifty six d scuse me  not unfortunately in a position to say who that is but anderson would certainly tell me i presume he would certainly know that information but but then the issue then earlies to the government's issue in the  looking at because it seems to me that this the threatening the theory about this so far as you've articulated it i would say that what you're relying on is the notion that my ever may have been the case with regard to the decision under the exit the then existing guidelines you would seem to be saying well that may be discretionary now are you know and i'm misunderstanding i think that there were two distinct to characterize it there were actually two sets of not discretionary and weak not policy based but they are choice based but not policy based then the second decision is one that we can see it as policy based which is where this guideline says ok the f b i agent now ha to either make full disclosure or if he's concerned it's going to end there are a bunch of exceptions and i don't know why those have gotten all lost in the shuffle here well that but they seem to have some policy component or some of them do well i agree and the  exceptions are if you're going to harm an investigation you're not quite a person in jeopardy is going to make a source not cooperate with those are all spelled out and i agree those are policy decisions but at the end of the day the policy decision that the f b i agent is left with is you can make full disclosure or if you're bothered by these competing considerations you have to make limited the scope if possible if we were ever feasible i think possible is a better word but that's a situation where they find out five minutes beforehand that it's the crimes going to be occurred can't probably reported down in error baka and i'd like to talk to the court about the why six case because i think that the government's going to talk about which was the situation where the prosecutor was was killed by the fallon and there was some reason to believe that might happen and the analysis that this court went through was ok the probation officer under the guidelines had to determine if there was a reason foreseeability of a threat of a risk that i think this is similar to credible and serious but then in the y sitch case this what the this court based its opinion on was in the guidelines that applied to the probation office the probation office had the specific choice you can make the session not to report to the person at risk you can increase supervision you can deny the parolee his work or you can report and this court's looked at those change choices and said yeah those are policy based choices and so you have both choice and policy based choice and so that subject discretion will function what why aren't there why aren't purported criminal activity is serious so he's going to make a determination about whether it's evil and then we don't we that's the before we got to the exceptions why is that every step there isn't there a call for some kind of judgment will there is judgment your honor but it has to be judgment and policy base judgment a two step analysis and those are not policy based choices just like whether driving eighty miles an hour is not a policy to term and then the guideline creates two two choices it's basically a tree and the two choices are full disclosure if you're not concerned about these other policy based considerations cooperation of a source in danger and someone but but if you are concerned about those then it says limited disclosure to local law enforcement the attorney general has already made the policy choice for the f b i agent and the f b i agent is ones after you lost the map lose the map and then say mom i'm just not going to anything i'm not to make any of these decisions because i don't have the math anyway so no point so you would say in that instance there is no decision suit to turn it over and then the map was lost at but i do want to correct one thing the court said we don't know if andersen lost the man it was lost it was lost it may have been a file clerk that lost it you know for  actually had a house or just an area or what was on a map well we we don't know precisely i have personally read a rick a record or a interview by one of the defense attorneys in the criminal copley but it's not particularly precise it was a map to the house showing its relationship to the border and what have you and i assume that there was the house to it was to the house but we don't have a map i haven't seen it and all we know is that he said i'm not in that one of the things that's been said here is when it wasn't to the house it was simply an area that i think that the government said in their brief was he didn't give an discretionary function case there's a two step process that gal bear lay down and i think it's would be most helpful to the court if i could walk walking through the two step process god both says you look at five think w well the court has to respond to each one the first step is whether or not there was discretion involved and the second step is whether that discretion was policy based or not i think i heard counsel pretty much concede that the policy that they're relying upon the attorney general guidelines does allow for discretion suppose anderson had this map and  doesn't matter what he thought about what his upset subjective intent was and that's why there is no need for any discovery and that's why there really is discovery in discretion exception cases the courts are clear that you look at the language of the policy and you see whether it allows the agent to exercise discretion in this case if he is only supposed to pass on the information if in his discretion he thinks it's serious he thinks it's credible he thinks it will not harm witnesses he thinks it will not harm ongoing investigation your understanding is that if you have a potentially discretionary decision but you exercised no discretion with regard to a in fact  in this circuit said specifically that you do not have to make the government does not have to make an actual showing of a policy decision or an actual showing of a decision being made the court is only to look at the language of the policy and see whether it's allowance for disclosure don't different that is the law if the policy of requires you to make a decision along certain lines and you don't authoress there is a mandatory policy here which is you're supposed to apply certain criteria and make a decision so it's not simply that there is discretion available but it's it's outlined to our our director discretion you're supposed to at least do that so there is something mandatory here make a decision in a certain way and you don't do it your honor with others but that's not what the policy says it doesn't say you must make a decision the policy says you shall pass on this information and then it has discretionary language unless there is if you decide it's serious it's credible and the effects of passing it on will not be adverse it nowhere says that you have to make a decision and and the coke case law is as i said very clear i would ask the court to look at at the case law that the government does not have to prove there actually was a decision he can either and the district court was correct in holding the district court said with god most of whether agent knew he could alert local law enforcement negative so then there's the other end let's suppose that he made the decision to do this he went through all the steps and he said yeah i really need to learn somebody and then he for god or he lost a piece of paper or something but but his decision was to do it and then somehow it didn't get out already even did it he even did something to have it be done in the next person down aligned to it then why well first of all i think your honor is be that the supreme court and this court repeatedly in this kind of case in a law enforcement case not in a design implementation  said galbraith and i think it's correct that negligence is irrelevant to the discretionary function analysis of the supreme court so then go right out for this court in the ninth wear or their guard rail or whatever but once you decide that it that they're supposed to be a warning and and then there was negligence i e that the sign falls down you don't replace it or you put it in the wrong place or you say the wrong thing then that's not discretionary now why is this different well first of all i just as an aside i recognize the court this court has made those cases i would say that they are hard to reconcile with cowbirds clear holding that negligence plays no role in the system discretionary function but having said that in your honor is correct that this court has made an exception in a certain series of cases those cases involve usually national parks forests wounds warning signs and i would urge this court to leave that exception in that area and not spread it over into the law enforcement exception there is not a single case which this court has taken that exception that design implementation and applied it in the law enforcement exception are example an instance as a matter of fact the courts have alfre and riseth are cases that are directly one point they don't involve sawing in a national forest they involved there was a threat to somebody and whether or not the government passed on that threat or did anything in whistle the court it's explicitly said negligence is not an issue the court rejected plaintiff's argument about professional judgment versus policy judgment  court controls this case as does the whistle case as does say bow which says in law enforcement investigations that's what this is f b i received a tip are they going to investigate it or not negligence does not play a role and then the operant case out of the eleventh circuit so i would strongly urge the court not expand the exception that the court has made in this premises liability safety area account into law enforcement if a mass is a couple hypothetical so i can understand your position and i'm obviously i'm not saying this is what agent anderson did but just to think this through let's assume first agent anderson receives information  he decides i'm going to flip a coin heads i tell the local sheriff tails i don't comes up comes up tails jeff is never notified you would say in that instance discretionary function and we're done absolutely it's not and i don't just say it the supreme court in calbert this court in all of its discretionary function cases makes clear that what is important is not whether there was an actual way but whether the decision was and this is the famous phrase you read it over and over again from gobert whether the decision was susceptible share to policy analysis not whether it was conducted not whether it was thoughtful not whether it was negligent but merely whether it was just as i understand it does say that if the agency has essentially happen it sounds discretion by creating mandatory responsibilities then then somebody operating under those directives  once the discretion has been exercised is not acting as if it is accurate to a discretionary function is that right some decisions of this court in the national parks forest area have had some held action for i do not know the single law enforcement case where that was held and quite the contrary and alfredo and whiskey which they did have certain responsibilities and battle they were phrased in mandatory language and our friend it said that if a person sees a violation of prison rules it shall file a incident report with the prisoner but the courts held that that was discretionary and even though it wasn't final and even though later the threat that was made was carried out in another prisoner was killed that even if there had been negligence even if they had taken over all safety responsibility but they negligently failed to file this report or they negligently carried out the search of the cell it still is barred by the discretionary in the law enforcement area and if i go back to my my second i guess are the same facts same information the agent says you know what i don't like mexicans i don't like people who live down there they kill each other and if they were right i would tell them but because they're mexican i'm not now of course i'm not suggesting that's what he said right so if somebody actually sizes a decision based on racial bias or something like that you have the same answer i i think so i mean i think the answer is not and i don't babysit obviously that would be a terrible decision if you made it on that basis but i think that the overall premise of the cour is that the subjective reasoning the motivation whatever it is irrelevant that there are two questions this court must answer was it discretionary and here that i think there's no question that there was plenty of discretionary tips every day and they have to decide based upon their experience i mean is this a credible one is it serious i mean in this case here they had to look at this woman who i think was living in washington d c and they say is it at stage t within the kind of policy judgment that is covered by this discretionary act now but there might be other reasons for it absolutely i don't i don't see how one when i tell you but house cases have to deal with  be other reasons well well they had to know they had to decide or they had to decide whether or not an investigation a criminal investigation everyone investigation and all f b i agents assisting united states attorneys federal law enforcement officials have to decide whether witnesses are credible or not whether they're serious or not and those are policy based decisions as chords held that a million times i like to make one last quick comment on my time is running about about this allegations in the complaint to play with never said that the map showed a location it's been alleged only alleged that it was an approximate location played with never alleged that this map was given to the f b i the home invasion it could have been given after the home invasion so if the plaintiff and the court want to waste the resources to go back and take a deposition about the map and find out the map in fact was a red herring that's fine and will simply prevail on summary judgment instead of a motion to dismiss the no further questions i think the court thank you very much a couple of points your honor whether or not negligence is relevant to law enforcement cases and whether or not violation of a mandatory standard in a law enforcement case can create liability the alfre case actually answers that question for us there were three allegations of negligence of alfie first that there was supposed to be mandatorily or at least they said there was a fact issue whether there it was mandatory to do an initial patient or prisoner assessment before they were of the danger of prisoner and with the salbi secondly once the threat was made whether  negligent not to take him out thirdly one of the sessions a search was made whether it was negligently conducted with respect to the first where there was a mandatory allegation the court remain ended saying that there were disputed issues of fact that needed to be decided and if it was mandatory dissented and said that no this was just simply a negligent implementation of a decision that was made and that should create liability and in that in that context that was discussed it has been discussed in a number of other contacts  also in law enforcement the savile case that the governor relies on there were allegations about whether the the investigation because that wasn't a about a prisoner or a person being killed it was about the investigation as to why he was killed and whether  say no that you were not relying no we are absolutely we're lying on that because the decision may have been made to pass on this information to local law enforcement which may have been frustrated by the loss of the map and because we were vet  practitioner standpoint the court just region have to be based on a particular is a particular allies description of what was alleged right and in doing that they said you should treat these as motions for summary judgment you can't be throwing these cases out of court without discovery when when law enforcement has the ability to keep all the facts to themselves it's impossible to make this complaint when we go to court and said let's look at the file and the government comes and says oh no and we say to the federal judge down below let us do some discovery and she says it would be futile how could she possibly know it was she noted that she didn't even know what the