the united states court of international trade jurist on it has been with us all week and we really appreciate her coming down here to help us decide these appeals and lee have three of them on the docket this morning and use misuse and abuse of governmental power united states owed a duty to mr van allen and to the public at large to protect them from the placebo criminal acts of its government and this confidential informant which is determined by the degree of control that the government has over him according the georgia law right well i only see one other case where georgia has found that there was such a special operation ship writing to a physician and a patient in georgia has never before found a special relationship you're asking us to extend georgia law beyond what is it bradley center versus western or yes you want i'm asking you to consider that the lower in the control required on the bradley center versus westerner is not the degree of control that has to be particularly confinement or restraint of an individual i'm saying that the courts reasoning and bradley center versus western clearly opens the opportunity for a case such as this i'm also saying that the georgia court has never never found i can see in the history what i'm saying too is that under the facts and circumstances of this case we had serious serious violations of mandatory public policy d o j and f b i policy in which starting from the recruitment the use and the supervision of this particular informant and the supervision of the f b i agents themselves this case is so far off the path that out of the only other cases that i've ever seen that was similar cases from the first circuit involving the infamous james whitey bulger and stephen the rifleman flemmi ask you this you know i think you can go beyond the confines and the doctor patient perhaps if you have some particular  way of controlling this person but at he mr for these particular acts he wasn't under the control police officers he wasn't working for them with a promise of some leniency or something and these particular the particular acts that led to the unfortunate death here your honor i disagree with that it too and a well to me how they were controlling him to the extent that it would be considered a special relationship that mr cho pay of was controlled by them not in the normal sense as we argued in the brief he was under their control because he was supposed to have been deported when he was released from prison in two thousand and eight the i decided to forget about that he was also not supposed to be used as an c i as in public informant as a confidential informant for the government without the permission of judge cooper on the other when we had the cia isn't in charge of whether he's deported or not are they broke however their policies require that they investigate and look into whether or not he is suitable to be a confidential informant they totally disregarded that they just went outside of that totally and just used him as a cia in total violation of mandatory policies and the control that's exhibited here on him was only not only that but it was his immigration status but my argument is this the greatest gift we have in this country is life liberty and the pursuit of happiness if someone liberty or your freedom or your pursuit of happiness you are under their control it's happened throughout the history of the united states what happened here on what the f b i would have to violate his life liberty or pursuit of happiness in your view for the informant to be under the f b i control i don't see a logical connection well the logical connection is this you on  allowed him to perpetrate any cup of crime they wanted him to do for their own purposes so their control was related to we want to keep under order what we are doing we don't want this disrupted so they use the control to him and say you keep doing what we want don't believe that's absolutely necessary and i think they knew that he had a propensity to commit crime he didn't say which particular crime it doesn't have to be this specific crime and this particular case he aided and abetted in the murder of melvin van l that there it he created a criminal act they kno are responsible for whatever crimes he committed out there whatever harm that third party technically it could in this under the facts of this case because of how far they allowed him and with impunity to create an argue these the i mean to get involved in these criminal acts you're on  explained that the type of control we quiet is some degree of control not the absolute degree of control required under the westerner cases and the progeny all of the cases that that we see cited by the government and by the  court we're looking at georgia law on georgia law in a lot of other scenarios that you know these relationships don't fall within this special exception that done it one time with regard to their physician patient to allegations in your complaint sufficient to allege that you fall within that exception because the government exercise a great deal of control over a confidential informant you know i don't have to disagree i don't believe that's what the case is say i think  were if the court the georgia supreme court was faced with the facts and circumstances of this case and everything then went on i feel very confident in saying that they would find that there was a legal duty owed by the government here in this particular case because we're applies rather than just affirming the dish you're caught give us the opportunity to certify this to do judge a court and let them make the decision because based on some of their cases and the facts of this particular case i firmly believe that they will accept that there was a think georgia requires a great deal of a substantial degree of control there's no need to sort of issue to the georgia supreme court i didn't hear you and i politics if we think that if we look at georgia long and we come to the conclusion that georgia requires a great deal of control based on the prior cases in georgia then there's no need to certified to the georgia supreme court is or if that's what you find if there's no doubt in your mind  law as we are you know not present on a motion to certify i can't disagree but you want to but i still think certification would be the proper approach because there is a question here i think there's serious questions when you look at these facts and circumstances nothing has happened like imagine that the f b i would be responsible for all harm any harm caused to third parties by its confidential informants that would that would be an opinion of mine that happened with those specific informants there's been nothing else that's come out of that so the cases that would apply to that this type of liability would be extremely limited extremely limited because nothing else has happened that hasn't been one here that hasn't been one in the other circuits but what we have is the first circuit law because there's such a degree just opportunities i would like to say you're one of the we believe that we have pled sufficiently that a plausible argument for a plausible claim for negligence wrongful death and deliberat indifference in this case thank you mendell i represent the united states of america absolutely in this case the allegations in this case are undoubtedly tragic but the bedrock legal principle that governs the case under georgia law is that there is no duty to prevent the harm caused by third parties to others that is the basis on which the district court properly found the plaintiffs fail to allege any legal duty owed by the united states and therefore failed to meet the first element of her claims for negligence which i suppose you're an agent been made very clear black letter law that confidential informants even if they're paid are not employees are not agents of the united states for purposes of tort liability and that's part of the reason why plaintiff never relied on that argument instead has to rely i think without a by protecting him from criminal prosecution controlling him by not deporting him that it it's a step beyond the traditional association there are agree the allegations are charlotte that this was an unusual relationship and troubling frankly and in many respects but the aspects of it that are unusual or that are troubling are not material to the dispositive legal question which here is the question of control  as this court recognized and as bradley center in its progeny have laid out that's a two part test there's the question of control and there's the question of foreseeability the plaintiff in a briefing in an argument so places a lot of the emphasis on the foreseeability but we didn't move to dismiss on the force foreseeability aspect i think that would have been a difficult argument a motion to dismiss stage and stead our argument is entirely on control and as judge wilson recognized in thirty five years since bradley center ban there are two cases in which a special relationship was found one was bradley center itself where you have an institutionalized mental health patient who is released on an unrestricted pass after threatening to kill his wife and then goes that weekend and kills as well and the second was associated health systems which involved a nursing home resident who assaulted another resident and the court in that case emphasized that the nursing home defendant had both statutory and contractual duties of care over its residence and that's it in the thirty five years since numerous courts in a wide range of factual scenarios both inside the medical context and outside including this cork multiple district courts in the northern and m district of georgia and the georgia court of appeals on numerous occasions have found no special relationship existed because that requisite kind of control was absent from the fact the control could exist possibly i mean it's not beyond comprehension that the f b i did have some degree of control over  the confidential informant was out there planning a murder so your honor that the now jeff speck goes to the foreseeability question and plan it has to properly allege both that the individual the third party tortfeasor was under our control and that the tort he is alleged committed was foreseeable and we're not raising questions about forsee ability to control aspect it has to be physical custodial control to restrain his liberty and there's no allegations that come close to that right and we're at the two of the six stage we're  the discord in for example carter vs a cab county has made clear discovery follows the filing of a welcome well pleaded complaint it's not a device to enable the plaintiff to make a case when his complaint has failed to do so the district court properly assumed all of the allegations in the complaint to be true in other words if we went into discovery and plaintiff proffered undisputed evidence of everything he alleges in his complaint he would still fail as a matter of law that's the exact circumstance in which a motion to dismiss is proper plaintive had two opportunities to amend her complaint in the face of the same motion to dismiss that pointed out the deficiencies that still exist in the court is considering today and was unable to make any allegations even if assumed to be true that could meet the standard and i think it's important to recognize that the word control here has to be understood in the specific legal context that the georgia supreme court and it and the georgia courts have applied it is not a synonym for influence or persuasion which is what plaintiff is trying to make it and there's a common sense appeal to that of course that the f b i has quote unquote control over its confidential informants most confidential informants are in that position because they are potentially subject to deportation or some prosecution but the georgia courts the case law is made clear that's not the kind of control we're talking about so for example in the trammel versus bradbury case the georgia court of appeals considered the relationship between a father and his adult son and what plaintiffs there want to argue is that this father had the ability to withhold his son's housing his income his vehicle very powerful levers of persuasion but the the georgia court of appeals said that's not the kind of control  required has to be actual assumption of physical control look at how the verses united states involving an air force officer and the enlisted airman again the court to recognize this is a military authority context this officer can issue lawful orders to the airman never the last that's not the kind of control that's required or landis versus rockdale county and other georgia court of appeals case where a police officer who's directing traffic at an intersection encounters a drunk driver who approaches and speaks to him visibly intoxicated no dispute that the police officer had it within his authority to arrest her detain her get her off the street he chooses not to do so later that evening she causes a collision killing the plaintiff's husband the court there recognize he had the authority to arrest her but that wasn't the kind of control that was required this physical custodial control and the travelcard going back to the to that case made clear that the analysis even outside of the mental health context it has to be a level of control analogous to the right to in voluntarily institutionalize a patient and that's important because post grad the center there were a number of other cases from the mental health context where patients had gone on to murder their spouses or siblings and the georgia court of appeals and here i'm thinking of her mother who and baldwin and kepler said that simply because they were outpatients they were not institutionalized under the physical control of the doctors there is no special relationship that alone is enough to distinguish it so judge wilson as you recognize this is a very heightened standard of control and there is thirty five years of precedent here i wish this court can rely in making its decision now there's no doubt that the unique fast of this case had never been brought before this court or any court in georgia but that is going to be true of virtually every f t c a case that it brought in federal court and if the unique nature of the fact it was sufficient to justify certification that sort of occasion would exist in virtually every case that's not the standard and said the question is is there controlling precedent in the georgia courts that answers this question or is there substantial doubt about a question of case law here there is no such doubt there is abundant case law as this court itself recognized in the do asphalt case in which it applied bradley center and its progeny to a unique set of circumstances there the question was the relationship between the georgia department of transportation and the materials testing company that it contract it now those facts are far distinct from the case here but they're also far distinct from any case that had ever been heard in a georgia court nevertheless this court had no problem applying the bradley center precedent and its progeny to those facts and finding that no special relationship existed similarly plaintiff's reliance on first circuit law and the restatement of torts is improper as a threshold matter the first circuit cases were applying massachusetts law which was proper because those cases arose in massachusetts similarly the district court here applied georgia law moreover the cases that we've cited i think we have a footnote on this i believe it's a footnote for the landis decision the dissent in that case heavily relied on massachusetts law again to dissent because these two states have taken divergent approaches to this issue there's no question that georgia law governs this case and that under bradley center plaintiff fails to allege necessary facts to show control five year relationship between an informant and an f b i agent and they gave each other expensive gifts they attended sporting events together they helped each other with their of with their own specific name and we've alleged that there was a benefit there was a quid pro quo that was paid and in fact a case that is part of the record of this we thought a couple of about believe it's the broader united states versus bryant case this is a criminal case and the federal court down in florida a new trial was granted because of the cause of is an allegation in the complaint the words informed and there's an allegation in the complaint that an f b i agent knew that there are this confidential informant was going to be involved in this murder for hi yes as a knew of other crimes that were being committed the murder for hire was actually facilitated by the g p s tracking devices which the f b i unlawfully authorized mistral pay us to put on vehicles to do what   paragraph one a letter it's reasonable to believe that that he had informed c so what you're saying in this is that because they had a very close relationship including a social relationship  and not each other for a long time it's reasonable to believe that he had informed jackson so if you're not saying that he had that if he had informed well testimony another case in a case he has going to tell them that somebody is about to be whacked you know that would suggest a very close relationship and bradley the westerner and the restatement both of them say that that physical  example of control that's required but it's not the only way that such control can be required and all we're asking for is the opportunity can touch the sky every to determine what actually happened they already know they can't do this in the first circuit and they're going to they're go