and this appeal concerns a very narrow issue and that is the application of the discretionary function exception to the federal tort claims act so the question a catholic priest in question on the premises of crippler providing clergy services to the tripler catholic community and it's families including children so the question is is the government action or decision to maintain mark maps and on the premises providing services to children and families is that a plausible policy choice  or susceptible to considerations of social economic or political policy and if they are then they're protected by the discretionary function exception if such  policy considerations are not plausible then the government then the discretionary function perception does not apply that we submit in this case is there a decision to maintain a pedophile on premises as a priest providing services to children is not a decision that could well you just you just blew by actual or  you're just the decision to retain a pedophile a year and in this city in this situation that it that that requires government knowledge that he was an actual or a convicted pedophile are you claiming the government knew that and i don't know that there's any basis for that in the record that the complaint alleges that now the what the district judge did is the district judge correctly assumed over the presumption of innocence of the speaker i understand the the issue can't do that the because because that's where the that's where the discretionary policy issue comes into play the assume that's what judge ben and i keep struggling with and in you muddy it out what is the fact assumed for purposes of the motion i mean in twelve b one you can have you can have a  trial on the threshold issue under twelve b one that wasn't done here that might might need to be done but it was but instead it was taken on assumed facts but what was the assumed knowledge the policy consideration comes in and you say oh well it's irrelevant because he wasn't he wasn't their employee or it was irrelevant because it was such a serious matter and so forth but the policy is is when when  suspicion warrant warning the outside world and thereby destroying the the reputation and employability of a person because of a poss possibility or suspicion or prior unproven accusations that's that's the where the discretionary function is that's the issue here and you and you won't deal with  there's still a notice of the danger the the the critical point is there no doubt they're notice that this man who is on their premises ok with access to children is at a risk is a danger of molesting children the reason that they have notice of this risk is based on his history which is alleged in the complaint so it's not a matter of are these allegations proven it's that they have notice of the risk that that's ultimately that question of notice goes to the merits of the negligence premises liability claims which this court should not a dress so then the question becomes if they hadn't the government had notice of this risk of that of the danger of his sexual proclivity meaning he had a tendency to have a sexual interest in children if they had notice of this is there any policy choice it's plausible that would allow him to be retained in this position where he would be ministering to children i knew took time in your brief with the hands of the case but as you're about halfway done here  tell us on his limb a cousin hensley they know the child is a that child they know is bad and they put him in a home with other children what do you think about the the reason is in that case the government agency was this child protective services agency on the reservation and you had a person that the agency was providing services that they had a duty to this child was also a sexual abuse perpetrator so that problem that they had a duty to him of confidentiality a duty to act in his best interest so that created the policy choice that's so that's a fairly unique circumstance you know that doesn't i hear government i don't think the government is going to get sued if it if it allegations about me now you can say there was no duty no employee employment duty to that greaser is a there's a governmental duty not to do that to anybody well it in this case i mean if you look at the actual facts  that they in the same timeframe they actually did terminate the contract under which this priest operated the contract with would that the teams were and they terminated that contract based on an allegation of petty theft that he had  not have a dangerous condition on their premises whether that dangerous condition is in the body of a person who poses a risk to children and it's because there's nothing to indicate or to it's not necessarily compelled that they have to i would him and i realize we do have a barrier to warn allegations but it's maintaining him on the premises really is the al it is is the allegation that they you know the children who are who are on the premises who are you know reaping provided services on the premises that the government should should not allow this dangerous man to have access to them is that hawaii was that what  draggin or may please the court any like you are from the united states under the federal tort claims act court's laughter stiction over tort claims against the united states when the claim is based upon a discretionary function quote whether or not the discretion involved the abused plaintiff has alleged the united states failed to conduct a background check on mark mattson contract priest for army hospital and of the united states should have known or knew about abuse allegations against massa will go slowly with the i'm not looking to complain i'll confess but if you look at judge seven objection page seven of judge or trees opinion the district judge's opinion here he acts like there were established facts about sexual abuse before he came there so he recites that and i know how he does his opinion he says even though they had notice of this but what does it i thought the complaint i thought both of you kind of implied contrary to the way it's written in the district judge's order i thought it was allegations that that's correct and i was trying to focus on that allegations this is paragraph twenty seven of the complaint it's on page thirteen of the appendix and there it states various allegations of abuse and notes that on one occasion he was arrested you know what i'm referring to in the district court's order top of page seven it has a prior to which means before before his time there madsen sexually abuse several minors that's what the says it sounds like everybody knew that so as i understood the district court's opinion the district court started the opinion by laying out that these are the allegations in the complaint which i will not only cite so i believe that page seven is the allegation in the complaint which is paragraph twenty seven to the extent that he's saying that the government had actually knowledge of the truth of these allegations i think that runs into two problems the first is that paragraph forty one of the complaint alleges that the government didn't conduct the background checked and that in itself was negligent because you didn't expect to find out even about these allegations so plaintiff is alleging that we didn't even do a background check to learn of these in the first place the second is record so i think there is a problem under a collar twamley if you're saying that we knew the truth of these allegations the complaint on itself doesn't allege a viable mechanism for that even assuming that that's true that we knew of the truth of these allegations i think this court's precedent holds that this is still susceptible to this discretionary function analysis and particularly hensley noted that even in a case where you know the truth of the on the claim that the united states was negligent in failing to keep mattson on the premises what that is an allegation of i mean what i think plaintiff's argument is is that as soon as the government knew or should know of an allegation of previous abuse by an independent contractor and the contractor doesn't work with children as part of the contract but is teaching a catechism class outside of his work for the government the government must fire that person i think that is susceptible to policy analysis in this situation because of the particular context here trippler army hospital had no catholic priest on staff it susceptible to policy consideration and indeed when the government noted that there were problems with the contract that you weren't showing up all of the time or taking leave without absence explained that these were really important considerations that we need you available twenty four seven that was specified in his contract to be constantly available for the patients at the hospital and going to judge locums point particularly i think what to do because there's no allegation and i think there's no possible allegation that the united states could have known the ferocity of these allegations will continue on the assumption that we knew or should have known about them then but then there's a further question about what to do about publicly disclosing and usually have we done harm to the catholic community here in taking away their confidence in this police have we done potential harm to the priest if the allegations turn out you know true this isn't to say that a decision on how to weigh all of these competing factors was necessarily correct here that would go to a trial on the merits on negligence but what congress has set forth in the discretionary function exception is once there are all of these competing policy considerations that is the kind of decision jurisdictional discovery one of the plaintiffs theories for liability was that the one that the united states failed to conduct a background check into plaintiff i believe initially allege that we had a mandatory duty to conduct a background check what the army regulations stated is that we usually don't do background checks we only do that if you are conducting child care services what we instead do is we receive an ecclesiastical endorsement from your religious organization that says you are a priest in good standing and you i should have asked you his is the endorsement in the record yes that's a page thirty three and it does it does it include the question have you ever been convicted of felony does that show no that was that was explained in mark mattson speculation at pa requires that there be no convictions in military or civil court so this was not developed necessarily as a partial matter in the case but the underground back work of the army regulations stated that the army knew that this is what the the court has no further questions choice inherent in the act or decision at issue and the notion that well it's hard to come by a catholic priest in that they're so pretty short age is is the state in the argument