while removing a jail in iraq russian machine along with his coworkers i have filed a federal tort claims act against united states which is directed at the accident missions of  for lack of subject matter jurisdiction on primarily the ground that we had not met the private analog requirement under missouri law for the words showing that missouri law would impose liability negligence liability on private persons doing similar actions to what the mines actors do and we believe that is fair we believe it's air for a couple reasons first of all the opinion did not address or adequately address the fact the missouri law just like west virginia law in the bread case that i think is very less treated here would impose liability based on forsee ability well let me let me interrupt you  the west virginia case is a west virginia supreme court case right that's correct there's no missouri supreme court case or all court appeals cases right that's correct and cut it say a workplace safety inspector doing doing inspections for the it's the plane case union electrics nuclear case because i have if you don't you don't know it just proceed yes your honor there are several cases that have said safety inspections or inspections can be negligence based on the first see a buil to determine that a mine roofless was i don't say so those are cases which would be analogous to the situation here but the general principles of missouri law are that if a person  forsee a danger and an ordinarily would would take precautions to guard against it that that is enough to establish a duty and in this case what's what's particularly important his mindset inspectors are safety professional so a professional standard of care would apply to them and would have guards their actions in a missouri law it's plain that professionals are required to act with in accord with their skills experience knowledge and understanding and so for that reason alone we believe that missouri law would impose liability on a safety inspector doing safety inspections at workplace because of the forsee of illiteracy and you have to show that he actually inspected that this particular machinery and saw it in operation and solve a light safety day fact i mean i don't know how often they jam is this happened once a day on hour once every three weeks that you have to show that he actually was aware of the of the safety violation and ignored it would be to be aired the that the proof would need to be that that he undertook to make an inspection or that he did make an inspection and that he had his failure either to do an adequate inspection led to the fact that he didn't discover the defect or if he did discover the defect that that was that was negligent because he ignored it i don't believe that i have to prove the actually found it i think it's sufficient for being able to prove it by virtue of the fact that he didn't do the adequate specs he was he was and he was negligent well how do you how do you prove what's an adequate inspection i mean what what what this sort of i think  spills over into the discretionary function to fafsa hop what do you have to prove to show i did that this kind of x number of hours they're all are that they looked at everything or for what obvious in other words that that was there now the fact that it's in imminent danger that involves purely safety considerations and under the six circuits meyer case they said that because if it s applying their safety policy which is already been established by congress and by the secretary of labor that there's no discretion left to take into consideration ration economic social and political you mention the west virginia case which is great for you but the miers case you mention is terrible for you right we created conflict if we sided with you and based on that case right the miers case actually for the discretionary function and those those cases were ignored by both the district court and by the government the first cases brown versus michigan miller insurance company where a safety inspection was done on a facility failed to determine that there was an explosion has or and tell the owner of the brain that facilities stop in that case the course said that the failure of the inspector to catch the defect in and do anything about it was negligent increase increase the risk of heart notably in that case the risk was saying before the inspection and after an inspection it was the fact that the inspector failed to do anything about it which worker continued to do their job in reliance on the equipment being made say of course and that in that case the company had contracted to be responsible for safety at the plant so boy that's an easy case and surely they were liable you make a contract for you supposed to do everything so oh that's that's very different in this case right because there's no real contract between anybody here well and this is true i don't think that's dispositive in fact in berlin or one of the things they distinguish is a defendant in that case and so we can't be liable because the employer is primarily responsible for the safety and the court of appeal said no no no that would eliminate potential liability in missouri law for third parties which is not consistent with missouri law here we have a situation where we have shared responsibility i agree that the mine owners in this case have responsibility so to product manufacturers other contractors that come on site and do work but this is a shared responsibility case and that that is our there is nothing in the mine actor in the handbooks of the regulations which goes against their being liability for share responsibility was and i think it's a situation where missouri law would clearly support based on general principles and on the cases that have been decided that a private person performing safety inspections of a workplace to sovereign immunity in this f t c a case under the first round missouri law would not impose liability against a private party for the negligent inspection of a mine in particular the united states does not o to trigger the existence of a duty it is certainly the paramount factor but first the appellant must establish that there is the existence of a relationship that gives rise to that duty and for example mine owners owed their employees a duty of care and that was directly addressed by the district court in this case in the brown case as well i'm not entirely familiar with the facts as i stand here right now but i believe there specific relationship they gave rise at issue in that case where the relationship was that the inspector brouwer's it was work for the insurance company and essentially the insurance company said if you if you want our specs inspector come man and inspect your premises we'll give you a break on the on your premiums and they failed to detect our advise of a safety problem resolved grain explosion right in there the defendants were hired specifically to inspect the plant and so they assumed your employees were hired specific going to inspect the plant or the minor things that's where the rubber meets the road in the government's position in this relies or or is goes to the miners and the mine operators and so that's why the good samaritan doctrine is at play and in particular restatement section three twenty four a because the must prove that the mind inspectors in this particular case had they been standing in the shoes of private parties would have completely assumed the duty of the minus specters i mean these are the duty of the mine owners to protect their employees and that he has a broad sense i think i don't think that they say you use a plant to duty i think they just say that you supplement the duty get i'm not fully aware with the direct particulars of that case it would be the government's position that the under the good samaritan doctrine expressed under three twenty four a day which is when a voluntary undertaking is performed to render services to a third party here the the miners and not the mine operators or the mine owners that one of the elements of the plant of must prove is either that the mine inspectors the government assumed the corys duty to protect which the reason stated they did not or that the inspectors affirmatively increased the risk of harm or the third part is that the appellant has detrimental a real lot and all three of those elements were rephrase of a different way none of those elements were alleged to be true and the in the complaint in this case and the subject matter jurisdiction defense that was race for this particular issue was official attack in the in the essence that a duty did not exist under missouri law but in particular on the this issue the barn's case this court's decision of arms case is particularly instructive there this court interpreted missouri law regarding live below the for negligent inspections by the government standing in the shoes of private parties in this court determined that federal inspectors do not owe the appellant a duty to inspect under missouri law and thus there was the lack of the duty deprived of the subject matter jurisdiction of the court  japan mandatory on this but but but i think a lot of that just doesn't apply to this case but because that that's what they're saying time and again about what's really going on there is to protect the public from and sanitary chicken yes you are and i think that exact question shows why is particularly important of the question before this court is the second branch of the good samaritan doctrine section three twenty four a in barns the pla was the plants the poultry plant owner and operator and thus the undertaking the voluntary undertaking the inspection done at the plant was done and what the services were rendered to barn as the owner of that plant and this court found that the good samaritan doctrine under section three twenty three was not a political because the purpose of those inspections the purpose of that undertaking was for the public's benefit and not for the benefit of the operator the owner of the plant so here that's the distinguishing characteristic from the case of why we believe the government believes that section three twenty three of the good samaritan doctrine that branch isn't applicable the government didn't render any services directly to the opponents in this case they inspectors came on to the the mine to inspect they rendered services to the mine owners and the mine operators and thus the the second branch of the good samaritan doctrine three twenty four a is a political or a political to the analysis because the services were rendered to a third party being the minor but the whole plaintiffs for the appellant must be induced to forgo other remedies or forgo other precautions and once again the complaint is completely void in this case of any remedies or precautions that the appellant otherwise  forwent by five based on the inspections being performed but even if the corps were to decide that the government od'd the opponent a duty in this case the united states sovereign immunity has not been waived because the court may also affirm dismissal under the discretionary function exception why aren't some of these in that a mixed bag because are some of the handbooks rules i know some i'm saying every effort and bureaucratic language but but  instance a regular safety and health inspection should be done it shall we include inspection of all required documentation minor training that's not discretionary that's pretty straightforward help there are certainly within the handbook a lot of nondiscretionary mandatory obligations imposed by the by the handbook itself on the inspectors but the first step in the analysis under the discretion function exception is to is to ask what is the conduct at issue in the conduct being challenged by the plaintiff in this case and in the minutia of particularly with the the training records your are asked about there's nothing in the the directive there's nothing in it sorry there's nothing in the manual there's nothing in the regulations or the mine act that requires the inspectors to to inspect every single trainee documentation that may have been collected by the mine the mine operator council there's a section of federal law says if a dispatch and i'm paraphrasing but pretty close mission finds a working miner who has not received the training they will issue an order declaring the minor hazard of self and take them out of the mine immediately correct paid for t g one that's right your honor and that's a contingent obligation and that's where our brief really discussed the if then logic of the contention obligation there is no evidence absolutely no evidence before this court that the opponent has presented that any minor came across any such well lacking documentation home on his says requisite the means required safety training and says they'll be inspection it says if you find you get out of the mine get them out of the mine i don't know towards the discretion tell me where the discretion is and maybe i'm not entirely tracking but to take a step back the mine act and show regulations do two things number one they impose obligations on the mine owner and operator with regards to state safety standards require documentation and require training documentation and the training must be provided by the mine owners it's not provided by the government then as well the mine acts and insure regulations also impose a a framework for him should monitor compliance with those requirements that are imposed on the mine operators and so for the specific language that you're referring to your are the required documentation is what the mine owner an operator is required to maintain so only if the insurer inspectors come on to the mine and find that in their inspections that they have they do not have all of the required  documentation then they must issue a citation or are then contingent language here there is no evidence that any m ship inspector before the date of the accident before june ninth two thousand and eleven found  that found that the mine operator did not have all the requisite or required training documentation and that the going back to the conduct at issue what the plaintiff is really what the appe really challenging is how the how of how insha inspectors inspect the training documentation inspect the repair maintenance practices disseminating information and  for potentially hazardous conditions what if what if they did find a hazardous condition what if what if the and where at the demotion and dismissed him so all they have to do is allege that they have found a hazardous condition and ignored what is what happens then to answer your first question yes that would be a mandatory obligation if they found that a hazardous condition that rose to the level of being in imminent danger which is a term of  then within the mind act then there would have been a mandatory obligation for them to take certain action but with the piece that you weaved in there your honor under the second prong of the discretionary function exception the government alleged a alleged eight factual attack of subject matter jurisdiction not a facial attack we did a facial attack with regards to the first issue but at the discretion of function and exception there was a  and so the court the district court was allowed to consider matters outside the complaints and in particular consider the most recent investigation that was done in march of two thousand and eleven the most recent before the accident occurred in march of two thousand and eleven and there was no evidence either through that report or any other evidence that the that the pallet has put forth before the district court that found a potentially hazardous condition in the mine before june ninth two thousand and eleven that i've you've just raised a term that i think i've never heard before i factual at tack on a motion to dismiss that sounds like a summary judgment motion but i've i've never a twelve b one motion not a twelve b six motion in this case and the case did at the very beginning of the standard of review in our attack i think it's critical in this case to recognize that the motion that the government filed went to the nature of the duties that the inspectors had they did not attack this specific factual allegations  issue and you can look at that and see in the record that they they attached the handbook the program policy manual and that sort of thing as exhibits and so what they were doing is framing the issue for the court to consider as just what is the nature of these duties are they discretionary or not if they're discretionary do they involve policy judgment do you believe as a facial attack it was it was a fact i mean one of the other under b one  a factual attack on all the allegations that have been made in the complaint it was a factual attack on that the particular issue of what is the mind's factors duties and i'm not aware of any case where when there's a factual attack the plaintiff has to come back and basically prove all the merits of their case well i can't get close to that under osborne right that you get the bottom line of osborne is whether that but here what we have is the way that the government framed this issue the way they set up in their motion was assuming the allegations in the complaint facts are true the nature of those duties to put words in your posing counselor mouth but if i understood what his argument was it was that if you could show that they found a serious safety violation and was soon i think we're assuming that this method was a serious safety violation it was not they had they were obligated was not discretionary to to report that correct and as i understand their factual attack was they'd never found it's bound up in the merits which will require trial but they did not raise that issue until they were applied for it and so i did for the district court and so i didn't have that wasn't properly framed as a procedural matter this core this record to have all said it's not proper to raise arguments for the first time in a reply brief because unfair to the opposing party to be able to respond now on this issue of training i think the handbook is clear says all require documentation must be selective but one one point that bears mentioning is the fact to him but also says that the mine inspectors must review the documentation and question re in the minors to verify that documentation is accurate based on the reports that the inspection reports that were submitted by the government there is zero evidence or indication that the miners questioned random miners or question to determine the accuracy of the training documentation and the handbook says that conversations like that must be recorded and the inspectors notice so they're absences is critical and back to the negligence issue of the private analog issue there was no requirement that we prove that the my inspector or any safety inspector was rendering services to the minor this court's recent case in brown versus davis said that the simple act of it being forseeable that the the senate's conduct would create a risk or greater harm and cause an ordinary person to take measures against it set the bridge case the bridge over the mississippi river case it is it missouri law here and so for those reasons we asked that the court reverse in remand this case to the district court thank you thank you both for your arguments case number seventeen dash i am sorry two five six seven is