insurance programs going back into two thousand and three in two thousand and four and before and since and the thing that brought this this case to to the fore was that the u s d a through  in this case a special investigator named tell us and decided that he was going to look into the theory of conspiracy by growers and packers and surance agent to defraud the government under this crop and then in the year previous to two thousand and three claim in which they were supposedly engaged in trying to defraud the government the evidence in the case clearly showed and the district judge judge  ruled in his acquittal jeffrey gordon on count six post trial that there was no way under the facts of the case that the gordons could have made out any kind of a claim or the government could have conceived there was a claim in two thousand three for a viable crop insurance loss so despite the government knowing pretty much everything about the gordon's lives going back many years before government about what kind of seed you you planted what kind of crops you had you know the government knows everything can i ask you a question about your complaint because if i'm remembering this just got dismissed at twelve b one or six days or can decided to try to do you pretty much have to allege some kind of agree just misconduct on behalf of the investigator here this agent toast and that he says oh it's and i think this the agent i met the man because you know your honor we never had any chance for any discovery in this case we're all right but that's the whole purpose of a twelve you know twelve emotion is that you've got to be able plausibly allege the facts necessary to meet the legal standard and so in you it seems to are you kind of did you say that  the agent got your client indicted based on incomplete and false and misleading testimony so you know obviously if the agent got up before the grand jury and why deliberately lie an attempt to fran your client it seems to me that would easily meet the standard and would allow you to go forward right but when i studied your complaint i didn't see any factual allegations and that's just kind of a conclusion that you allege there and paragraph two point one five but i didn't see any underlying factual allegations that made that conclusion plausible and i wanted to hear more about what you can point to in the complaint that shows that agent got up there and knew when he testified before the grand jury that your client had committed theirs or that offense that he knew at that point that that was flat out false well actually your honor we had to amend the complaint to get down to where we got to the malicious prosecution action which is clearly recognized under the substantive law the state washing right i'm looking at your amended can right and so on and i'm telling you that i certainly would agree with you that your claim should go forward if you had plausibly allege that the agent lied before the grand jury deliberately gave false testimony and all i'm asking you i have it right in front of me what can you point me to in terms of the underlying factual allegations that make that conclusion plausible well that the agent and this is in the context to your honor that the agent starts testifying before the grand jury and i believe july two thousand and five at a time when our clients crop insurance claims in two thousand and three and two thousand and four and actually been forced to go to arbitration with the government and which my clients prevailed and the government paid them after they required them to sign a mutual release of liability of the government and my clients let me just be more more specific is this your general seems are not helping me ball is for you to be able to point me to what's in the complaint that says that before the grand jury the agent said the following here's why he knew that that was false and i'm telling you i've read your complaint several times  don't see any allegations that come remotely close to doing that and what i'm asking you is to tell me where in the complaint i should look at because you're just talking appear doesn't help what i need to do is look at the four corners of what you allege in the complaint to find out where they are  ball quite dramatically change that not not in a way that i think was was favorable but that's that's the law and that's what we have to apply but my allegations and my complaint are at actually outlined in my reply brief  which i state and i allege that the special agent knew that what he was telling the grand jury about a conspiracy theory about north korea variety of potatoes had to be a law especially in two thousand and four when we didn't even grow those potatoes and how do you how do you get in front of a grand jury and testify there was a mistake by my clients about that kind of a product when we didn't even grow it any new that well i read the agent's grand jury testimony i don't know if we have the full whatever you gave us because you guys had access to it and i read through all of the testimony that you provided our court and all i remember is i mean the agent's testimony about your client wasn't that it was a lot of it actually right we don't that's the point you're i we don't think we should ever been involved in this anybody can do basic math skills knew we couldn't made a claim that would have been false in the first place and yet we're dragged into a forty day trial and spend three hundred thousand dollars of our money to defend ourselves you know to have the judge dismissed one count against this after the government rested because no juror could could convict anybody on the evidence the court had and then being acquitted on the other count by judge after trial ok how about this i have the grand jury testimony in front of me some of which is redacted yes exactly and i don't know again if we have th excerpts i don't know if we have the full but is there something about what's the best statement that you're going to point me to right now from the agent that you say he had to know was false just like the specific testimony he offered may make a suggestion cou nsel is about two minutes left if you'd like you could preserve some time for a public i would and then your that period of time before you have to get up on rip of you could try to locate the it please the court my name is an essay on behalf of the united states there are two issues before the court today that both support affirming the district court's dismissal of this case first the federal tort claims act does not provide a waiver of sovereign immunity for claims that fall within the discretionary function exception mr gordon's allegations regarding special agent tillotson actions in his investigation and grand jury testimony that led to the crop prosecution fall squarely within the d f e second the district court in a ruling that the discretionary function exception applied use the correct standard under a twelve b one which was the basis for the court's dismissal motion that challenges the jurisdiction of the court a court may look outside the pleadings to resolve factual disputes relating to jurisdiction and these factual determination zx are reviewed for clear air false or misleading the district court's order specifically made that factual finding the district also ruled that the preponderance of the evidence indicates the tilton's investigation and grand jury test discretionary and susceptible to policy analysis on a few law god that's the problem right i mean if he said something before the grand jury to get mr gordon indicted that was false and that he knew was false then obviously that's outside the right i mean that claim can go forward yes your honor to the extent that the plaintiff has made allegations that especially in tilton that would fall outside of the discretionary function exception and i agree that perjury unlawful conduct those fall without outside of the discretionary function exception but those allegations are not made here and those facts were not presented to the district court at the motion to dismiss stage but but something went badly wrong here you have to agree with that in light of what is a judge who was the judge at the criminal trial yes i mean that's i'm just trying to put together the pieces because the cases as i understand it against mr horan just completely fell apart or maybe was never there and that's that was the basis for the judgment of acqui and of an alleged criminal conspiracy that used highly suspicious contracts which had no known purpose in the potato industry those were facts that special agent tilts and were conveyed to the grand jury at the request of federal prosecutors who brought the grand jury presented the evidence and requested the indictment so special agent tell us and actions here are involving hi investigation at the it through the involvement of the office of inspector general and then his involvement it's providing grand jury testimony which was at the direction and request of federal prosecutors who felt that there was sufficient probable cause relating to these crops well i let me just tell her this is what i remember from the grand jury testimony and tell me if i'm remembering this wrong i remember most of it being directed at other people and what the agent laid out is that pay we've discovered this series of contracts just as you describe that we can't think of any legitimate reason why any potato grower would do this and then leads to these claims and we think you know it's going to get some kind of insurance crop insurance program and we think that the you know these people are basically just a fraud even though the government i with them too that's kind of what i remember that's correct your honor and then what's been provided before this quarter you know small pieces of the grand jury testimony and excerpts mr gordon has been provided with the full grand jury testimony and we made sure that that was available both obvious in the criminal trial before trial and here in this malicious prosecution case so mr gordon has had the opportunity to review all of that grand jury testimony and try to identify any statements by a special tillotson that are false or misleading and what mr gordon has instead focused on is saying these don't provide a full and complete explanation of everything possible before the grand jury and that's not the question that's before the court today the court today is evaluating whether or not a special agents tell its special agent to let sins actions as alleged in the many complaint fall outside of the discretionary function exception and the rulings regarding investigations by special agents and testimony by special agents that are you know at the request and brought by federal prosecutors are squarely within this question every function exception unless the plaintiff can point to any factor action that takes us outside of that discretion but you can see that if an agent goes before the grand jury and testifies to facts a b and c all three of which are true as a technical matter right he didn't deliberately lie about a b and c existing but he is also aware of facts d e n f which if you put all six of those together would completely know suspicion about facts a b and c if he goes there and just tells the grand jury about a b and c and that mentions nothing about the enough that would take you outside the discretionary function exception wouldn't even though you didn't deliberately lie but new new i'm only going to give them half the story and that's going to mislead you know it's going to mislead them into thinking that this person did something wrong when in fact if they knew about the other three facts they would clearly come to a different conclusion that would take you outside the exception w c circuit ruled that even in there's situations where there are potential misrepresentations those are quintessential discretionary functions if it's part of the prosecuting attorney's decision about what evidence to present to the grand jury and what you know the materiality and the exco potential exculpatory nature of those decisions are prosecutor's ultimate discretionary choice so to the extent that special agent tillotson is providing truthful and accurate answers here and the facts that you present are not the facts here there are we prevent provided no citations to the grand jury testimony where there is an opportunity for a special agent sylvan to provide further information that he may or may not have known and should have known at that time  the discretionary function exception still applies even in situations where there could have been an abuse of discretion and that here we are solidly within the political and policy choices that are the second step of the analysis of the discretionary function exception as out laid out in the gabbert and berkovitz test because first of all there has been no dispute by mr gordon that there is any constraint on special agent till it sends investigation or grand jury testimony that would take us out of first step one of the gabber or berkovitz test and then the step two of the discretionary function exception test under berkovitz looks at are we looking at considerations of social economic or public policy and what question is a prosecutor is asking a special agent at the grand jury fall squarely within those considerations of social economic public policy and what criminal prosecutions to eventually pursue and second guessing those adam washes prosecution claim under the f t c is exactly what the discretionary function exception is designed to prevent for if i may does the record indicate whether the pill once made any request to the district court after the they were totally dismissed here to have fees awarded against that go as some sort of sanction for inadequate investigation after the criminal trial your honor there were not any requests under the hyde amendment or i think that's right and i think there is a can't remember the name of this particular congressman who this this statute is named after where you can seek redress your opponent mention is called excerpts of the record page one thirty eight one thirty nine and this is the amended complaint and the starting at paragraph two point two three going through paragraph two point two seven there is the allegations that we made with regard misconduct and you testimony of the social age of your brother minutes will give you another minute because i took up your rebuttal thank you are you saying this in the pages again one thirty four did you say one three eight and one three nine paragraphs two point two three three two point two seven got ok i will study those carefully and these are outlined and i reply brief as well of pages three four five district court should not have gone ahead under rule twelve and dismissed this case this case should have been converted to a summary judgment motion we clearly presented facts that would defeat a summary judgment motion this case should be remanded to district court for further proceedings including discovery in the right to trial there are no further questions let me just ask just what it is that took up some of the time when you're the issue of concern do you have any other question counsel i think will thank you and i think mr johnson will think ms waldron and the both of you for your final arguments and for your travels here so the the case of gordon versus the united states of america is submitted and we all now