being able to accommodate this unusual time and with that mr humphreys you may begin your argument may it please the court i stand before you representing the interest  when the simply can lower legions like three these four victims assert that the u s government is liable to them under the federal tort claims act the discretionary function exception does not apply they base their claims to raise my hand ordinarily we construe that exception pretty strictly since there is a waiver of sovereign immunity there why what's your best argument that we should not prescribes the course of action that you rely on that you say the army should have been required to do here without question well st of all your honor the the army should have well together some commander and the installation commander before him should have determined what the appropriate spillway design flow was and then maintain the dam so that it with sufficient to pass that design that is in the regulations first of all on army regula make a decision as to who has final decision was sponsibility asked to the spillway design for here there's no evidence that he ever made any determination other than one have him out which is what was in the  emergency action plan of which he was charge knowledge because he was responsible for a fee did it make a determination then the government is also because he was required to make a determination read with the requirement what was required is specified well whether the government found that there was a critical failing because of the inadequate spillway ending in operable out the critical failure is a failure of the the statement  failure of the dam is imminent and requires immediate or emergency remedial action for problem resolution major structural operational and maintenance deficiencies exist or normal operations major repair or or rehabilitation is necessary to respond stored the dam spillway or permit works to original design or current design standards what the regulations say is that all dams must be maintained to allow passage of the the only thing in the record is that it is one have p m s if the if the garrison commander did not make that determination and did not make any determination then the government should be liable with well ok and then i go back to one of my earlier questions that i think may be judged hudsons as well what is the particular rule or regulation or statute that you are relying on that that requires the command to have done these things correct if you read the statutory scheme regulatory scheme with a hole there in the army i'm clear and no sorry i know this is just you know i'm so what i'm looking for a as i'm understanding your argument today it's really focused on the idea that they needed to pick a level and they didn't do that and i'm trying to find the regulation that says you have to pick the s d f and i can imagine a regulation that would say you have to choose it and you need to have to put it out for notice and comment even and let the people in the area know wot it is publicize it know well that's not right is it i mean you could start you could have arranged a garrison commander can say look i've looked at this and it's going to allow a flow that i think is good enough and it could still be because i you don't pick the s t s although it has design in the term spillway design flow or flood that's not what it means and if you look at page six of the government's brief they missed their definition  design flood term and based on the location based design flood and several other considerations primary among those are the hazard classification which must be done every two years and the reservoir storage capacity so it's clear from the from the regulations that have to be determined because they're required to review that every two years and they must ensure the dam is capable of passing the f t s the same determination in that regard thank you very much when you look at what the what the plant the dart department of army pamphlet implemented when they became effective it makes it even clearer that it's the responsibility be and why they're in me and that's where it says that the garrison commanders may be help pursley waterfall for the safety of the dams under their authority and was one project to correct decisions if funding is not available they will request of the chain of command with high priority to get funding for the project the responsibility will shift to the next level of the board the pool will not be raised until the safety deficiency is corrected out list will be maintained and controlled tested annually now in this instance when he was asked what does that mean about the garrison commander being held personally liable at the last argument when we were on the most of the minutes he was asked what is that in there for and counsel the government so they looked into that into the tip to get the attention though the people that were responsible for maintaining the dams to give more attention to them than there were being given by pointing out that they're considered the demos and you can just ron i'm sorry i do have a question and i just because i see your time is running up and i don't want to let you go so there's in the joint appendix there is some language or at least some record evidence showing that the army had determined an appropriate level d that was within a range it was between the one hundred year flood and a half pm after and it was further concluded that the existing outlet structure was capable of passing the five hundred year storm so it was a fine so that is your position that that is not what happened or is it your position that even if that happened the selection of an s d f wasn't specific enough to meet the regulatory requirements and i'm trying to believe what you s every bit of record information from that point forward is that it's one have p m s which would make sense that you would want to in light of the additional hazard have a higher as  to design a major public works projects are exactly the kinds of decisions that congress sought to protect under the discretionary function exception and i think as i think the colloquy with my opposing colleague pointed out there's not any language in the army regulations that requires the jamma owner to make a specific finding a best yet want any particular schedule on the contrary army scheme what about what what about the language he read to u what's your response to the specific at this specific regulation he cites as we acquiring the gear as a commander to make a determination and he says the garrison commander didn't make a that's a reference to deciding whether the damage small or large and let it downstream hazards are and my building colleague is correct that those determinations can influence the dam owner's decision on what design should be  of discretion to the dam owner to decide what web design flood to use of it and there's simply nothing in the regulations that says if of them you know the plaintiffs appears to prescribe repair and maintenance at least at the lower level gates just like your  significant or high house or dams requiring structural maintenance or repair will be immediately maintained or repaired or the pull over that language doesn't specify what is to be considered as a structural maintenance that is required the way that the army is understood that is if if there is some problem with the dam that that means that it's not going to perform and it's designed standard then you need to fix that but here is the dam was designed to a one hundred year flood standard the low level outlets in operability didn't affect the ability of the dam to perform at that standard and so the army permissibly chose to address critical items on other dams at fort jackson before it turned to the repair of the low level historic once in a millennium storm that the lakes still want to feel the dam still would have overtopped and there would have been negligible changes in the level of flooding that was experienced between sounds lake dam and the abandoned railroad and even if there was a failure to exercise that discretion at all but another point i think it's important to make is even if you decided it even if there were something in the record that said you know the standard here should have been half pm that's rather than one hundred year flood it's largely academic because that's just a general standard it doesn't prescribe it for us because that's sort of like saying you know we're going to have a rule that the error rate for s s a hearings is going to be five percent or below that doesn't tell the judges how to decide you  rehabilitation project but there are references in the record to the fact that a one hundred year design flood and use at the time of that rehabilitation was i'm sorry go ahead i was just looking down to see if i could get you a specific appendix cite  and sixty five of the appendix it's just a very informal document there are some questions for the contractor but there's a question about you know could you explain again why the one hundred year storm used here the government's expert report which is not  in the record here on the contrary the army regulation says the final decision responsibility shall be the decision of the dam book so i plaintiffs argument ultimately is it sort of like you know this this too lame country highway is it passing enough cars through i think for me to like redesign it to a four lane divided highway standard and you need to sort of render the dam in operable in the meantime and there's there's there's nothing in rich case there was a rematch and because the plaintiffs hadn't gotten discovery on whether there was the nature of any specific mandates on the part of prison officials to search inmates before they were released into the yard and here you know we had two years of discovery very extensive discovery on exactly what mandate you did or did not exist in the plaintiffs have failed to carry the burden of showing that there was any specific mandate on the part of army the appendix zero which is a general army regulation that talks about army regulations and army pamphlets and other things and says you know what is the role of each of these army documents in the army's regulatory scheme and that document seepage shall be constantly monitor repairs will be made immediately that language is an axe or taishan on the part of managing officials to do those things but it doesn't itself sounds foreign policy there's nothing that requires you know  and so i'm looking at seven hundred and forty seven and maybe i'm looking at the different here but if that title or the heading is performance standards and then it says army dams will be maintained at or above the minimum condition levels of post state and as specified here and so it sounds like they're talking about performance standards not repairs that's that's right but it uses the word maintained and the use is performance standard what dam was designed to do it's determined on a forward looking basis based on the conditions driven in part by how much rainfall is expected to fall as a maximum potential  well as the hazard side classification health all the damage all these things that are not policy driven determination and that's one thing we really haven't talked about you know that i want to one rebuttal is the talk about what is a policy determination and what is a scientific hazard technical determination because that's exactly what s p f is and it's precisely a performance standard as it indicates on the heading you asked about factual disputes last time and and it seems like my opposing counsel has pointed out it in one thousand two hundred and sixty five dollars is the st time i've heard that they're maintaining that it actually was a determination that it was one hundred year flood standard now if you look at the document that's from two thousand and seven if you look at the structure of how these regulations are supposed to be in poor prated they're supposed to validate and reaffirm the size and has a class station every two years in the documents we have to review it annually and to exercise it as well we also have the testimony of gary bolling who is the person most knowledgeable about the about the dam and he testified that it was one had p m s and you can find that   pat down search with a non issue was evidence and felt that probably the pat down search was not done well enough here you can look into our mc report and the simply the proof is in the putting in terms of what all was wrong on social economic or political policy individual carelessness and laziness cannot qualify as a policy judgment and we would assert that s p f is not a policy judgment to begin with and when you look at the overall structure of how the army regulations change it's clear that they're trying to remove discretion from the garrison commander st will put it in his command of the installation commander and all of the regulation didn't even know what an outlet was this run so i just want to react to your position that the s d f selection of an s t s is not a policy judgment because it just gives you a chance to respond to my concern about what i think is really fundamental to your case the regulation says that the selection of the s t s should be based on an evaluation of the relative risks and consequences of flooding under both present and future conditions and that kind of like risk benefit calculus i mean isn't that sort of parent to mattick policy judgment and discretion no you're right i don't think it is  what we're talk when you're talking about policy speaks in terms of social economic or political policy then you're talking about a safety standards an evaluation of the risk downstream from what happens if there is a what who lives down there what is the depth it's a technical determination if you look at the very back of the a p a you can see where they evaluate how much water is going to be going downstream and who lives there meteorologist could probably have forecast the amount of rain that was at the receipt does that have any bearing on this court's issues in determining whether or not it was discretionary on the part of the garrison commander against it this goes back to my question again it just seems the but when you have to evaluate relative risks and consequences i understand you to be saying that that requires st that you specify what those risks are but then isn't it always inherently a policy and discretionary judgement as to sort of how much risk is appropriate to bear in a given set of circumstances i think in this instance your honor it's not this is these are the terminations usually determined by the u s army corps of engineers you can take the s d f and then decide you're not going to build the dam to comply with it if you didn't have these regulations saying that you had to do that right i mean the s t s is is a is a scientific determination you can make an economic decision not to meet it if you don't have these army regulations saying that you have to but here there are regulations say that you have to  at the performance standards so you don't have any discretion what is not without your honor we would we would simply ask the requests for birth of the trial court's judgment and their judgment and then return remain the case to the district court for further and hopefully we will all be together one day again soon but for now you'll have to take our thanks from afar for i'm your for your arguments and that mr humphreys i think it was you that was out of country when much good and hopefully mr sandberg here your family and friends are are well and we appreciate your arguments and thank you have a good day thank you very much