first second case for argument this morning is later against the united states the district court dismissed those claims based on its conclusion that parchin macpherson especially agent surely were acting within their discretion with respect to all of the conduct that was alleged in recently held in bunch versus united states that exceptions to the government's waiver of sovereign immunity under the federal tort claims act are affirmative defenses that must be pleaded improved by the government bahrain the court reversed a grantor summary judgment because the government had not met its burden of proving that the intentional toward exception found in section two six eight zero for determining factual questions which is you know essence what the court did here but this court doesn't even need to get to the point of analyzing the particular conduct after it is one of the provisions of the chapter but when you but you also have the language in twenty six age that says that the provisions of this chapter shall apply to all claims involving malicious prosecution for investigative and law enforcement officers in the language of those two provisions conflict and those will yes or no question you look at ways to suit what it it does not say that your honor but if the provisions are the entire chapter we're going to apply under that theory then the beginning language of twenty six eighty eighth would also have to apply because that's also a provision of the chapter and that doesn't make sense under the weight of the statutes construct investigative and law enforcement officers the government has waived its sovereign immunity with respect to any claims in that situation and th have already brought both personal and your does not quite a claim within six months possibly in seven months and i suppose i don't have to file within six months i just have to file within the ordinary statute of limitations which for the united when you're looking at twenty six eighty in the proviso you have to look at the introductory language that is modifying and the perp in that section and it's modifying the introductory language of twenty reply i can see an inference that it knocks out the first chunk of twenty six eighty eight it's not it's not pollution language  but i but if we're going to start knocking things other than the first part of twenty six eighty eight if we lose more than a proviso to twenty six eighty eight then i'd have to knock out everything i don't see would look at it and construe this section of the statute as a whole and determine if any of it and with respect to our claims even if this court were to find officer investigative officer does not have discretion to violate the statute don't have discretion to commit or toward what the government discretion to commit whatever slander or false arrest or any of these may please the court floor myron for the united states i'd like to touch on a couple of points related to the interaction between i twenty six eighteen twenty six eighty eight if i could as you recognize the majority of courts had concluded that there is no conflict between these two provisions that they must be right in conjunction and that line course meant proviso modifies the introductory language to twenty six eighty eight but that the court may still consider whether the conduct  statute regulation or policy there is presumed to be discretion to act and that legal question about the interpretation of the federal statute or regulation or policy in addition or other provisions twenty six eighty would apply and here concluded that the conduct alleged in the complaint was within the government's discretion because there has been no specific  four general category raised the majority of it is actually district court concluded the kind of conduct that involves investigating a criminal complaint and management of an office during a time when it's a that individual co worker has been subject to or investigation and federal indictment that is exactly the kind of investigatory conduct that this court recognized in reynolds was discretionary and  either conduct is acceptable affidavits that were submitted to the court as part of the district court as part of the evidentiary hearing with regard to the motion to dismiss the district court correctly the district court here concluded relying on this court's case law in new and alexander versus mckinney that the constitution was in fact not violated because this court specifically has said that for t it was a finding in the underlying district court opinion and from the judge kendall it's not in the complaint one way or the other but the question is whether that the policy m specific course of conduct that the agency must follow and there is nothing in there that would specifically prohibit the manager of an office from conducting an initial interview with regard to a complete that has been alleged especially actually expressly gives the u s marshal authority to relieve an employee from duty on a misconduct allegation based on certain factors if the misconduct complaint represents a criminal violation and if the to determine the scope of the complete all that policy says with regard to referral of complaints is that they shall be referred there's been no allegation here that the complaint was not permissibly or properly subject to consideration of whether the conduct of the issue was discretionary i think this court case and reynolds is a clear example of where the court concluded that the kind of good issue wasn't discretionary because it ran afoul of an indiana statute that prescribe certain conduct case was that the there was a lie under oath about the factual predicate for the initiation of the prosecution the court concluded that that was given that there was clear evidence  the individual had lied about that factual predicate that that was in violation of the indiana statute the the only allegation in this case is that the statement that was made in an by somebody else who did not object to that statement being included on their behalf that the individual knew no information that would be helpful to the defense which is the kind of discretionary judgment that the concerns about it so this is materially different from validation in reynolds but i bring up reynolds only to suggest that there are some circumstances under which the kind of conduct that would give rise to an intentional tort under the law enforcement proviso would not be within the government's discretion certainly i think some of the other torts including assault battery and some of those things what also be the kind of case is within the discretionary function exception as the district court found but not that all cases for malicious prosecution would be within the discretionary function exception our court has recognize