thing that we call the law is supposed to serve the citizens who live our lives under its watchful eye and tell that yes you're starting iraq and i understand what you're saying but we still ultimately have to have a legal basis for any decision that we made and so it seems to me that based on the case on this circuit there at the t v a in its energy producing capacity is carrying out a government function and so the question then seems to me to be whether there are any regulations that would have limited their discretion regulations or other forms of law that would have limited their discretion our allegations were in essence that bike dropping the cable into the water the t v s he had created a hazard that when it then made the decision and there might be some discretion your honor involved in the decision to post boats out there to warn other boaters of the cable that's in water but that once they'd made that decision then because the cable is in that one hundred yard wide channel of the tennessee river that those boats had to stay in that area and warned boaters instead the boats had moved over to the northern shell work where they could not serve the function of warning buggers to stay out of that channel where the danger existed immunity from all of them but i'm going to waive a munity to a certain extent and then the courts have interpreted that waiver as meaning ok it doesn't apply where to even a discretionary function and one of the exceptions actually primary one certainly and probably only one in as if your discretion has been limited by a absent that if it's a function that you have discretion to determine that the government has discretion to determine how it's going to be exercised then it's covered badly exception for the and orders and you can't say and you can't do what they did is there are we missing your honor i don't know the answer to that question and part of the reason from a factual point of view we don't know the answer to that question is because we never were allowed to do any discovery and so i think that with discovery we might have a better answer to that very course to the extent the regulations are published restrictions of that nature you can find are  least some folks can find pockets online but but you're saying that t v i might have some internal restrictions that you weren't allowed to look far that that is certainly what we had believed the case might be and why we had asked the district court of it would allow us to do some discovery that was at fifty six a half kind of motion i mean what what did you did you tell the district court look there's this discretionary function was that the motion to dismiss because it had been declared declaration attached to it was akin to a motion for summary judgment that we had not been allowed to do any discover and we have the court to allow us to do some discovery and one court went on and a hearing on the motion to dismiss however and sometimes that can be interpreted as a request for discovery end of the facts of the declaration what specifically did the declaration cite that you discretionary i'm unity doctrine and events and that every decision that was made out there on the river that day in essence was a discretionary decision i don't have it sitting in front of me and i did not look at it last night trucks what we would say to the court is this that the pettibone decision was decided prior to meyer and le pentagon decision this court was dealing with the issue of the t v s employees liability prior to the court rule call right after pettibone came out there was a statute passed by congress that dealt with the fact that the exclusive remedy would be to sue the t v s and so it said that that if it if they t b a employee is sued then that the v a employee in essence has complete immunity because you substitute the v for that employee the reason that we believe that is important to this court is because of the time congress did that and revised the stat or created statute that said the t v a shall be substituted in for employees what the congress did not do was it did not revised assume in the suit qualls or limit it in any fashion and we would therefore say to the hundred ninety eight respectively because it's in those opinions that the u s supreme court said that the eleventh circuit court would need to look at those three factors that are set out its in the recognize that sue and be sued is not does not bar the existence of and the development of a discretionary function exception i mean  would court point to court to the opinion and it is it is a district court opinion in grant versus t b a your honor that came out of the eastern district of tennessee in one nine hundred forty two it to our knowledge that's the earliest opinion where really get your argument about that unless the entire outline of discretionary function tases are wrong we think we believe that the better analysis is the analysis used by the second and fourth circuit courts in the north carolina and connecticut opinions your honor and also the i guess would point this out to the court even if court has determined that this type of conduct rather than being commercial conduct as we have asserted it should be considered if this court believes that it is in fact the type of conduct conduct to which the type of conduct that this court should immunised and understand we've got discretion not of law and honor the discretionary function tennis exception amount of time your honor if i may actually question of being the the court does have the power to be even if discretionary and munity applies of looking at it and determining is this in fact the type of conduct that is that is policy public policy consideration type decisions to which the immunity should apply broadly disagree about not to disagree with  faculty look at that but that is where you determine if a discretionary function test is to be applied started is this a discretionary function does it do what kind of policy decisions and the bra indirect sense said we haven't done anything to undermine our discretionary authority there's nothing that applies it would do so and he asked for discovery and was not yet sure  couple responses to the asking for discovery and it was tonight at number one and i'm going to hansard the court's question more specifically number one in the plane of suppose i'll have brave there investigation and i think it was three or four months after the accident that actual report was released to the public and so the plaintiffs of had that accident report and that accident report  talks about the facts of the situation and provides a timeline and it provides diagrams it provides photographs so there was a lot of discovery in that accident report yes about the facts and is that the two patrol boats were not properly deployed they should have been a deployed in some other manner the declaration of the supervisor of those patrol boats is is mentioned in our appellate brief and of course the supervisor says that to the best of his knowledge there is no rule restriction anything that required him to deploy those troll boats in a manner different than what he did in trying to stop the boating traffic coming from up and down the river but there could have been some other kind of restriction that might have affected the decision statements all went towards the allegations of negligence in the complaint and recall that in the complaint although not focused on here today there were many allegations of negligent hiring  supervision training all kinds of things the case is now of course ball down and it's focused on a very narrow thing and of course what we heard today was to focus on the deployment of the two patrol coming up and down the river and stopping the boats and this particular bout was coming down the river so fast and the relative relative locations were such that the t v needs or t v a patrol boat could intercept this particular vessel and of course the other thing that i would note was that despotic or section of the river a half mile above a half mile below had been closed by the coast guard closed all traffic no traffic was supposed to be coming through here that restriction was put up immediately after the incident happened that afternoon about two thirty and then this accident occurred three hours later at five thirty  what's called notice to mariners and those broadcasts noticed mariners close at area it's much like the f a a will close certain airspace and that had been done here because the line had fallen and the and of course the line and following did not strike the plaintiffs the solar the plaintiff it was three hours later and the decision making here that caused this accident was of course the decision to pull it up out of the water and during this one particular time it was hanging low over the water and that's when the plane successful came along it's got this go back to the real the problem i'm having after listening to six joins us how to do that without some kind of discovery there are it may not be possible to do without discovery or it may be possible to affidavit any further discovery and they had lots of discovery i know for a fact for example that they were allowed to come on t v i premises and inspect the machinery that was involved and speck the broken anything else basically now your are i would simply point out that a couple of things to just clarify for the court to try to argued that it is not part of the executive branch and say cite t v a the e p a which is a decision of this court in two thousand and two that's not correct statement your honor in that case t was part of the executive branch and a major issue in that case which this court decided was whether you can have a just a couple case of controversy between two executive department agencies goes against the united states and they emphasize against the united states i would point out to the court that the suits in admiralty act on its face applies to the united states or any wholly owned federal corporation and that t v a is a wholly owned federal corporation so the suits and act analogy is really  as i stand here right now your honor i cannot point you to that it is my belief that we did in fact ali fifty six after affidavit informing the district court that we were requesting the opportunity to do discovery understanding that now your honor and yes even if we could find it it doesn't seem like it's in your brief in your opening brief anywhere why would that not be a waiver i am concerned your honor that we might have in fact not addressed it in the initial brief i believe that we had raised it will once again judge i can't point you to a senate's in the brief that mentions it as i stand here right now and i'm sorry for that but i cannot up what i would tell the court is that the discretionary ameena d analysis that we're discussing we believe and the case law should be applied only to water referred to as whol connecticut north carolina opinions where they indicated that we needed to go through the three step analysis and that if in fact there was no interference if allowing the lawsuit w s under your position as i just heard it that's a governmental function power provision and therefore to be a community doesn't apply but we have oh in that case you're on the t v a hired a an independent contracting company to design fabricate and erect the ghastly cell for sation system but the court as we read that opinion did not look what the court's holding was was dealing with the issue of whether the decision to give the safety authority to the contractor was one of these discretionary decisions in the court found that that was an hour and only makes sense counsel if the discretionary function exception  generation and distribution i mean that's that's what that case was about that's when the person got kill energy production and distribution and we apply and the discretionary option exception in that case