before we began i think it would help of both counsel will address the jurisdictional issue raised by the twenty eight j letters and the timing exhaustion and filing morning may please the court my name is karen stafford on behalf of the appellant stephen moore ellis nicole perry and chopper two l l c to answer your question about the jurisdictional question this was raised for the first time by the that and i trust that the court received the response response to that is that the notice of claim was submitted in january and then the government issued a formal written denial on july thirtieth on august first or fourth excuse me the very beginning of august the appellant then served that lawsuit and commence proceedings prior to the service that lawsuit the government was not even aware that a lawsuit had been filed the lawsuit could have been withdrawn at any time prior to its service and there was some case law that was cited to the court that under this particular statute commencement of a suit requires the accomplishment of service of process and that's what happened here this argument has never been rains either to the district court or in its briefing i don't think it's extraordinary and you know depending on where it sorts out that the government which it says was asleep at the wheel and forgot to notice this at the outset in the district court and in the court of appeals until days before arguments so that's a very unusual situation  d the question then is is the premature filing is that actually the fixed date as opposed to service the filing versus the service and your position is the service is effective and the government's position is the filing is effectively a correct i assume it's the government's position although it's not really been articulated until now and the reason that our position is that the service effects commencement of the lawsuit is that there is no requirement for the government to appear for litigation even in soon until service of process is accomplished no deadlines arise nothing happens until the lawsuit is  served your claim without saying we're denying your claim because we haven't had a chance to consider it or it's b because it's premature or anything of the sort right that's absolutely correct and in fact it's abundantly clear that the government they weren't aware of the lawsuit because it hadn't been served they had amount of time to consider and evaluate the claim and which is the purpose of the six month window of time so that the government can determine whether or not there could be settlement perhaps the government had ample time for that the purpose of the statute was accomplished and i will say that the jurisdictional requirement was met here because we the palance filed a notice of claim and they under the statute now investor of stiction into the court because they exhausted those administrative remedies by filing the notice of claim and then by waiting to commence the lawsuit until there was in this case a formal written denial but even if there wasn't and i am more than six months had passed by the time the complaint was served i would ask that if the court were to consider any action on this basis that it would allow for a further briefing since that this was something that the parents have s stream gauging people ways that issue in this case or the cable weight issue in this case is not marked it's important for the court to know that it was not marked with any aerial markers it wasn't identified on any map available to pilots including the u hazard map and they were it these cables are admittedly invisible to pilots as early as nineteen eighty four the government knew that these stream gaging cables were invisible and were killing people and there had  then alarming amount of deadly faith fatal accidents that had occurred prior to this particular accident even prior to one thousand nine hundred four when it first issued its policy to do something to mark these cable ways can the government hazardous condition exists and make a discretionary decision not to market or not to do anything about it for whatever reason and they do that i think our case on the ninth circuit is clear that when the government not only know the hazard in this case the deadly hazard but it also created the hazard it cannot then hide behind policy to not properly warn the public of the hazard and protect public safety and there is a number of cases that stand for this proposition the most recent pronouncement of that is young versus the united states and that was decided in two thousand and fourteen it's  directly on point because it's a failure to warn case about a hazard that was created by the government that the government knew about but failed to warn the public about and young held that there cannot be reliance on policy that public safety is not susceptible to a valid policy analysis under the discretionary function exception essentially there is no discretionary function exception well there is a discretionary function exception when the judgment required by the government would be that that is required by the ordinary private person and i'm sorry that's when there is a waiver excuse me of liability when that judgment is uniquely governmental then there is an exception and that the government is able to exercise discretion and to a policy considerations that's not the case here for example young distinguished a number of cases in which the national park service was required to weigh policy considerations of conservation public safety when it identifies natural hazards that exist in its parks and in those cases the courts found that the government is able to exercise its discretion and weigh those policy considerations because it would be unrealistic for the government to identify every potential hazard that in the wild but the case is different when the government not only knew of the hazard but created it it out there and then fails to ensure that the public is safe from it and that the young q so reliant on a very long line is it doesn't that however just fly in the face of the whole point of the discretionary function exception in other words it's it's forcing the government to make a decision in a given way about a given hazard that they may decide that they don't want to exercise her discretion and that way well that escaped the discretionary function exception it's meant to be construed narrowly the federal tort claims act is a remedial statute that's meant to be construed broadly and it's meant to hold the government liable for conduct that an ordinary private citizen what would ultimately be help liable for someone looking and considering the exception narrowly it would be it would this right the entire federal tort claims act the purpose of it to allow the government to hide always hide behind policy to protect every action it takes like in this case allowing invisible cable ways to be erected bolted in the side of canyon walls for the purpose of blending in with the surroundings and ignoring the long term trend fatal accidents that had occurred get back to the rupture that were asked to employ in these cases when you point to any mandatory directive yes so the bulk of our argument has been devoted to i exercise of discretion here i would argue that the answer to that is yes for over a decade the u s g s had a policy for each district to evaluate its stream gauging pupils determine whether or not they were hazardous and then  t install aerial marking bowls here this particular cable was evaluated and determined on multiple occasions that it required aerial marking balls and yet none were installed it wasn't until after a the lawsuit was thousand ninety five after another deadly cable strike accident that the u s g s decided to re examine its policy at the advice of its lawyers and then implement a policy to into the year two thousand is not a valid policy but even still had the government followed on mandatory what is your best support for that i mean otherwise if we were to buy your argument it would seem the government could never change a policy certainly the government can change a policy i will point out that had the government followed it's mandatory policy between one thousand nine hundred four and the year two thousand there would have been aerial markers on this particular cable but in the year two thousand the policy implemented by the government i would argue here is not valid because it relies on f a a regulations that are wholly in a political to these structures that aren't governed at all by the f a a and also realize i'm kind of a list of these after the fact policy considerations that are found nowhere in any document and the u s g s manual there is there is no evidence that the government actually weighed any of those policies when it determined to install aerial markers on this on the replacement cable the cables but i think you just got us back to our original point which is that apparently u s g s did exercise its discretion and decided to change its policy that existed prior to two thousand and two a new policy and they can do that right in this case the failure to warn the public of a deadly hazard it created i don't believe it is within the government's discretion to create a policy to do nothing of to warn the public at these deadly hazards that it created and it knew had killed people since one thousand since the sixty's actually there had been a lead in accidents that had occurred at that before the accident that occurred in this case fifteen so to change its policy to a purported policy of doing absolutely nothing i don't believe that it's within the government's discretion to enact a policy to just ignore public safety and you know you don't think that the case circular excuse me with directives as to how to light and mark these wires very specifically at the time that mitchell was decided ground wires were not required to be marked but the pilot in that case was aware of the cat wires next to it and was aware that these structures existed and they were marked on maps it's not the case here the stream gauging cables that issue here are not governed by any guidance any regulations by the f a a or by any and they are not marked on any map they're just they're just their existence is unknown to pilots and they're invisible so it would be impossible for them to be avoided and i certainly have a couple minutes left so most of the questions i can reserve the rest of my time for a bottle thank thank mit please the court benjamin shields on behalf of the united states i want to begin by apologizing to the court that we did not recognize the jurisdictional timing issue until shortly before the argument this was something that  wish we had seen earlier and we express our regret and apologies to the court that we did raise it so late but having said that i do want to spend a little bit of time on it given direction to counsel and i want to begin by talking about the service of process issue because that very argument that the plaintiffs are making that you don't measure the time based on the file and you measure it based on the service of process the first circuit squarely rejected that in a published opinion called barrett view of versus united states in two thousand and six and you can find that it for sixty two f third twenty eight pages thirty six to thirty seven and with the first circuit correctly explained was they started with a rule of civil procedure three which says a civil action is commenced by filing a complaint with the court and what twenty  twenty six seventy five a talks about is instituting an action in the first circuit said instituting action means what federal civil procedure three says and it means filing a complaint and i'm sorry can the government waive way that rule i'm sorry can the government and you waive the rule of six you know six month waiting period unfortunately on or under this court's precedent that rule is jurisdictional but i will say that i don't think the court needs to rule on the six month basis in this case the discretionary function exception is also jurisdictional that's a different issue altogether but what i what i was trying to get at is when the government denied the claim not on the basis that it was premature not exhausted but on the merits can the government just simply wave the six month waiting period for the club that's a complicated question the short answer is no because it's jurisdictional but the longer answer is that it's a little more complicated than that because this lawsuit is prematurely filed and it's forever barred there would be a question if plaintiffs filed a new lawsuit that new lawsuit would not be premature there might be other defenses to that new lawsuit and we would have to determine whether that other lawsuit has other timeliness problems maybe there's wrester to cause problems those that all get resolved and that other lawsuit and i certainly don't want to be here saying that the other lawsuit would be fine but whether a later lawsuit could be maintained that is not premature would have to be resolved in that later lawsuit your honor i also just very briefly on the timeliness issue i just want to point out for the court that is my understanding that at the time that the government did its denial on july thirtieth twenty fourteen my understanding at least from agency councils that we were aware of this lawsuit despite not having been served and is in fact rather common in f t c a cases for the government to be aware of lawsuits before formal service sometimes that happens because the government monitors the docket sometimes it happens in high profile cases if there's a media report sometimes we could be informally notified by counsel including counsel if you know maybe it's counsel in a related lawsuit or counsel might even informally tell us before service so this is all to say that the government is not  six months the opening brief on appeal alleges that six months passed from filing with the agency and filing with the court that is what it says we should have calculated that and when we did calculate it knows that we notice that it was not six months and all we can do is apologize to the court and raise it now because this court has held that as a jurisdictional issue thank you for having said that if i could turn to the discretionary function exception we think this case is a straightforward case and it can be resolved on any of three grounds first the court could just resolve this because this case is like mitchell and mitchell this court held that an agency is decision to defer to the airspace expertise of the federal aviation administration is a decision that is itself a policy based decision and that resolve this case in addition the court could resolve the case on the basis that counter balancing safety considerations also are valid to invoke the discretionary function exception here the government here u s g s talked to the f a a and the f a a told it that not only should these cables not be marked but that doing so could even confuse pilots who expect to see warning markers only at higher altitudes at higher elevations furthermore the government had a declaration that explained that installing these warner mark warning markers can become targets for marksman who can cause undetected damage to the cable ways which could jeopardize the safety of u s yes employees who use these cable ways to suspend themselves over rivers and there's also other employees safety considerations  i think was that the f a a does not really have jurisdiction per se over this type of cable and so you are really deferring about that and if you read the regulations you'll see that they absolutely apply here there's nothing about the f a a has published regulations that in any way say that they don't apply to us g s wires what council is actually referring to is a twenty fifteen f a advisory guidance document that's not an f a a regulation that's not the part seventy seven regulations that this court invoked in mitchell it's an f a a guidance document and as we explained in our brief that guidance document by a terms not only applies to power lines but it also applies to non energized catenary wires which are wires which are maintained at a defined tension so even if you thought that the advisory guidelines which are not in part seventy seven somehow had relevance to this case there no relevant distinction here between power lines such that were at issue in mitchell and other non energized catenary wires but your honor i think the more important point here is to look at what it was that this court analyzed in mitchell and what the court and the part seventy seven regulations as they are in effect today are similar in all relevant respects in that certain structures below an altitude are not deemed a hazard to air navigation except in certain narrow circumstances none of which are are a  here also and your honor that the actual basis for why mitchell thought that different to the f a a involved policy judgment was because mitchell recognized that allocation of expertise between and among federal agencies is itself something that is a policy based decision and here you have even more than the deference that you have in mitchell because here you have a and that u s g s when it reevaluated its policy in two thousand it didn't just look to the f a a regulations it actually called someone from f a a it sat down at a meeting and said hey we're thinking about marking all of our cables nationwide is that a good idea and the f a a said don't do that that's a bad idea you're well intentioned efforts could actually interfere with our nationwide scheme and could be hazardous because pilots get confused was noted on maps and because it was a bald eagle nesting area there was evidence that flights were not expected for that reason but regardless your honor i think you know the fact that this was a narrow river canyon that just first of all feeds into our scenic integrity point which is that if planet argument is that this should have been highly visible they should have had bright orange warning markers so everyone could see it that was completely inconsistent with the scenic corridor congress had designated this area of  river as a wild and scenic river and it directed the forest service to have a management plan and that management plan said that in this area the really river manmade structures should be designed to blend in with the natural setting to the greatest extent possible and consistent with that management plan that the forest service hadn't acted the existing cableway at the time of the accident did largely blend in with the natural setting now one could say that well may be a different decision should have been made maybe there should have been bright orange warning markers but the discretionary function exception applies by congress as direction in the text of the statute whether or not that discretion be abused and here the agency had another countervailing policy consideration scenic integrity and scenic access and it balance that against safety consideration and under this court case law that is sufficient to invoke the discretionary function exception and indeed whether or not the agency even sat down and balanced it this court case law says that all that the agency has to show is that it was susceptible to balancing and it was clearly susceptible here i'd just like to address a couple of comments very quickly first of all it should be noted that the replacement cable that was erected after this accident was fitted with aerial marking balls those bright orange balls there is no evidence in the record that the government weighed any of those considerations that were discussed just now scenic integrity vandalism pilot confusion none of those things were considered when putting the replacement cable and installing it with the aerial marking rolls it will also say  that the canyon is not narrow it is first of all very broad and as early as one thousand nine hundred nine and its first anyone specs in the government recognize that this is an area that likely means warnings because it's frequented by helicopter defer to the f a a who the government has called the experts in this area is disingenuous because a decade earlier today earlier it acknowledgments own documents that because there were no f a a regulations or guidance that govern structures a policy was needed to protect pilots safety not just there in the record that shows what the typical light altitude would be gore other helicopters well h s are permitted to fly at any altitude is there anything in the record about what where they're flying in this vicinity well i'm not sure that there's anything in the record but i do know that in the record there is a very low level flight like water dipping logging missions things of that nature it's not just scenic flights that are risk it's the government's own employees but is there anything in the record that talks about what a pilot's obligation is to determine the safety of where he or she is following his or her aircraft or what is in their record is that there is nothing for pilots to look towards to see where these cables are so there would be no way to know or expect where the are if you can't see then you can't avoid what you can't see and you certainly can't avoid it if it's not marked on any map i the point is that the argument that the polls might create pilots confusion is a strange argument because a pilot would naturally ovoid a cable that's clearly marked even if it was tempting he was temporarily confused about why that marker existed but that confusion would not cause death leaving the cables completely unmarked would certainly cause death because these these accidents were result in death absolutely there are fatal and if you can't avoid them and you can't find where they're located on a map and the government is continuing to allow  example there are power lines everywhere and not all power lines are marked so doesn't a pilot have an obligation to ascertain whether or not where he or she is going to be flying that aircraft is safe before they fly down to a citizen like a p s in the britain versus a p s case in arizona case which held a p s liable for not marking its power lines the f a a does provide guidance for those types of wires and also those wires are bolted to  large obvious structures not to the sides of canyon walls for the very purpose of blending in with the surroundings but the you ok think think you know we've got that part of the argument well in mind i appreciate your argument as