the government unlawfully deported mr and i are safe in violation of this court's stay of removal for two weeks he was stranded in mexico and afraid for his life and safety because of past events in mexico once he was returned to california because of the course intervention the government serious montane reconsidered his finding that he did not have a reasonable fear of persecution and placed him into withholding only proceedings before an immigration judge he thought damages under the  for a violation of state torts because the f t c aways the united states sovereign immunity for claims against law enforcement officials who would be liable as otherwise as private actors the purpose of the f t c way is to compensate individuals harmed by government misconduct it is a remedial statute and should be construed liberally and exception should be read narrowly this is not a bit insane he does not seek damages for constitutional violations he does not seek damages for violations o or on behalf of any elian arising from the be such an action might be e g to commence proceedings adjudicate cases or execute removal waters out how should we interpret that plain language are you under so there's two arguments on this the first is the repeal argument that kolka they say that there's either an explicit repeal or repeal by implication and an explicit repeal only exists if there is an exact reference to the statute the predecessor statute the supreme court's decision  conflict and there's three ways to read the statute so that they're consistent at least the first is that the restrictions on twelve fifty two g are only for violations of the i n a this is of course a state to and obviously this is an issue that we dispute regarding silva the eight circuits decision in sylva finds that twelve to two g applies all across the board not just discretionary claims but if you look at a d c which is the supreme court case claim was that they shouldn't be instituted because these were selective enforcement claims based on political opinions and the supreme court and a d c says there was legal authority twelve fifty two g bars there were strain on discretion and course there was no legal authority to execute a stay because there was a court of this court entered the order but the third important component of this is that in the same statute that twelve if you two g is instituting ira there's also thirteen fifty seven under eight u s c and thirteen fifty seven g seven and eight are references explicitly to the f d a and those are provisions where state actors who are empowered to enforce immigration laws are still under say that it is focused on only cases where there is legal for legal authority to act but there is a constraint on discretion and the eleventh circuit sixth circuit and third circuit all agree with that approach the eighth circuit and fifth circuit into regular removal proceedings the plenary proceedings before a judge so there was legal authority to detain the plaintiff in the issue then goes to discretion so even in that case of twelve fifty two g applied it still would be distinct from here it's on the alternate remedial scheme and even though it doesn't cite sissoko it's the same reasoning of sissoko which is that there are other avenues in the eye and to pursue a violation but then it goes on to the f t c a component component of the moving on the decisions in the tech wreck cases i think are really instructive there hasn't been a case yet applying these tucker at cases to the f t c but it's essentially the same cases over and over where there's a damages action under the us subsequent substantive accused repeal or asserted repeal and in all of those cases that the supreme court and mostly the federal circuit go through the analysis of the explicit repeal versus the implicit so moving on i meant the last issue that was addressed which is the subject matter jurisdiction under the foreign country exception but that was not what you move on or what's the what's the marriott narrow west rule that we can craft in this case that would give the court jurisdiction over starseeds claim there was no explicit repeal a marriage was no repeal by implication that's the narrowest role and that it does follow the line of cases for implicit repeal decisions there hasn't been a court that has applied this analysis there was a district court case in medina that was then affirmed on different grounds but that seems to be the way to apply really the notwithstanding any other rule and it still says that's not enough for an explicit repeal if you look at the f t c itself it has many many many explicit exceptions right it's got exceptions for the fairest doctrine for military service for forfeitures for foreign country exception discretionary function exception congress was very clear when it wanted to provide an exception under the f t c a and that was not you know general provisions like the discretionary function but also subject matter one knowledge in liability under thirteen fifty seven so the narrowest way to read this is just find that g does not apply to f t c a claims period because there's no explicit repeal and no repeal by implication then moving on to the foreign country exception this was not addressed by the lower court but it does acknowledge it is an issue of subject matter jurisdiction that's appropriate for resolution the supreme court some of the decision on this look at two things the injury and the damages and those are distinct things the injury is a discrete act that renders the defendant liable for some violation of the law the damages are ongoing so if you think about it in the context of let's say ice assaults an individual and legally deport him to mexico and then he dies in mexico the injury is in the united states right when he's assaulted but the damages are ongoing those are approved while he's in california as well plaintive during the legal violation i'd like to reserve my remaining time right  now here mr r sees removal was an unfortunate mistake but it was still an action to execute a removal order the only two circuit courts that have squarely addressed this issue so both the it's of the case and let me just ask a hypothetical so i can better understand your position let's assume that a foreign national not a us citizen will testify under subpoena before a grand jury about the taney abuse by ice agents and there's a court order saying you've got to keep this person in the country you can't have him removed by the ice agents to say you know what we'd rather have him gone than testify before the grand jury so they affect his removal under your position would there be no cause of action execute a removal order and the particular tort alleged well i think in both cases there is a an order saying don't remove this person and someone is now in one in that high my hypothetical was an evil plot to remove this person and i think in this case you're suggesting to mistake but other than the mental state of the agents executing the order i don't really see there being a difference in both cases or had an order from a court saying don't remove somebody and in fact they were removed so the more you know the more intentional the conduct and the less that it is you know intended as a good faith perhaps negligent effort to effect a removal order the harder it is to say that it arises from a decision or an action to execute removal i can see there being a difference perhaps in the underlying cause of action or the amount of damages but as to our jurisdiction though i don't think our jurisdiction would turn on the mental state of the of the agents with it i don't see anything about that hypothetical i gave you that there would be no of detainees and just we don't talk about how well you know there's a common sense limitation to the interpretation of arising from that i think could also be applied in the scenario like this to say that conduct that i decisions or actions as we said in have sappy and then how is it an exercise of discretion when there's a court order in place staying the removal to points in that your honor and i don't to discretionary decisions here executing the move order is still a discretionary type decision even if in this instance the stay would have prevented the  and i think if you look there's still discretion even though there's a court order saying that you can't remove someone not not in this individual case but but overall the action to remove somebody or decision to move somebody is a discretionary type activity right that we are talking of the a d c case it doesn't seem to talk about individual applications of the decision or action to remove aliens it talks about types of activity it talks about there the issue was the no deferred action decisions it's got to comply with the court order right you indicated that it was a mistake not to comply with the court order but at the point the court orders in place there isn't that mean that's no longer an exercise of discretion yes there's an individual case individual case yes and i think actually the silver decision talks about that where it says well that you know even if the execution of the move order despite the stay is not exactly discretionary it also doesn't  discretionary component and actions which seem somewhat less discretionary about the court order at the time it removes mr arsenic which might be one level defense i don't know how that would work in a tort action but a stay in place that doesn't negate the existence of the removal order and what's at issue here is the action to accomplish that removal order now opposing counsel says there's a circuit split she said identified the fifth in the  order and the other it deals with an ineffective assistance of counsel claim that was the reason there was that was just collateral to any of the three enumerated actions in twenty two g so i don't think that either of those powers can hold someone in content for intentional violation of a court order and we don't know yet whether this was intentional or not or mistake or way that theoretically powers because that would be a claim or a cause arising from the deportation i don't i don't think it would be i'm not see i'm trying to conceive of what the cause or claim would be there and it would be holding the government in c had filed from his denial of credible fear and if it occurred within that process then i don't think we would say that it falls within it of falls within the jurisdiction of our toughest u g because that process is accepted from those because that is  place where you challenge your removal is in the petition for review process so if they think tempers proceeding a rose there i don't think you'd be making that same argument that it was that there was no jurisdiction if i could i'm told i was totally confused by that answer because i'm not sure that you would trust the hypothetical this is a situation where the removal orders in place and the court issued an order saying that you have no authority essentially you cannot remove this person under your interpretation of a rising under the government's authority to execute removal there would still be no jurisdiction for  exercise of the cards independent inherent powers i mean you'd be arguing that we didn't have jurisdiction right and you have an argument that it was never as an exercise in the courts inherent powers in there for as a cause or claim from liability to the same extent as federal officers so if federal officers are immune from liability under twenty two g then that would apply to state offices as well it doesn't indicate anything further than that and for these reasons  damages actions are a disincentive to government misconduct when there's a court order in place the coo the government needs to know that there are ramifications if it's violated in immigration we have we don't get any of that under the f c c the f c c is the only thing that's left to have any consequences for government misconduct is there a dollar limit and damages and the f t c you know the only rule is that you're limited to the amount that you can you claim under the administer of complaint so if i claim one hundred fifty thousand of the i mean complaint that's the most we can get but again there's no punitive right and so i'll just give you an example right now i have a t r o that was issued by a district court i am petrified that the government is going to violate the t r o and remove the client because of this case and because of sissoko and because of my many because there is no accountability towards government misconduct there was no contempt order in the ninth circuit unfortunately this practice of  removals as you can see from case law is rather common and here we allege that there was potentially it was intentional and it was certainly negligent and i personally made many many efforts to make sure that the government knew of this day and he was still deported but there has to be some sort of consequence for when the government is violating the law when violating the rules there was no discretion here there was no legal authority to deport him and there has to be a consequence for it with