allow private citizens to sue the federal government and hold the government liable when their employee is acting in the same manner and the same extent as a private individual with the by the discretionary function exception to the government cannot be held liable so long as that person arrived course of action is followed in this case we have a prescribed course of action that was not followed and as a result the discretionary function exception should not have applied in our case that we have a situation where the effect trends administration that was the entity of the federal entity that had a residential drug and alcohol treatment program or veterans if not is there another policy you would point to with regard to those claims so you're out of i think it's fair to say that although the complaint i do believe from memory is cashman count one negative liz and the doctor going to a wedding they told her that was an appropriate and they took her office away did other things too  i guess you could say supervisor that were in accord with their policy part of part of what your honor has summarises correct and part is not so with the complaint alleges is that they learned her supervisors that she planned to attend a wedding with him off site for personal reasons told her that was inappropriate but then they are after allow her to continue to care for mr lindsay for an extended period of time it was not until another male patient not  do you deal with the courts this court's decision in souter that seems to hold the government employers hiring and supervisory decisions or discretionary functions as a per extent that this court has made a blanket proclamation that all negligent hiring supervision and protection claims are powered by the discretionary function exception i think with due respect to the court that that decision is simply  don't believe in souter and of the subsequent decisions the court has really given thought and analysis to that holding to the extent that it is holding its setting aside negligent hiring without really getting into it because  i as i said that's not really a part of our kids our position is mr lindsey is position is that when the government has the knowledge of an unsafe condition or of misconduct by one of its  discretionary function exception is not implicated because there can be no sound public policy of a social economic or political new jersey supporting the decision to not do something and so let's let's if doctor's name but the doctor was going they were going to a wedding what other evidence was there alleged that the v while the doctor was treating in the complaint and at the time the complaint was filed that that that was all that was not when it was brought to their attention that she plans to attend a wedding and that there was a meeting at merion he was told that's not appropriate you can't do that but was allowed to continue to treat mr  employment question to have discovered which is a separate issue that that's raised in the briefs and papers follow but without the benefit of being able to depose the supervisors and know what exactly they knew and when they knew it that was the evidence is the policy specifically defines used in a few words as a non professional relationship i'm going back again i keep looking to the side because the policy is on its monitor two pages fifty eight and fifty nine but i'm not a professional relationship and the policy the professional shall be removed at least from treating that particular individual until the complaint is the best and that as alleged in the complaint did happen here getting back to the discussion about s when that employer federal employee or specifically receives now the s of an employee negligence or indiscretion or any practice that is unsafe and fails to act that that can in fact be the had and that that was what formed my good basis for the complaint and i do believe that had we had the chance for their discovery we may have been able to ascertain more well but like some of these other cases that are cited in in my brief including to natalie which is a decision of the th circuit and there's that there's a couple of other district court decisions it is not a person who ruled that negligent hiring and supervision and retention claims are always are by the discretionary function exception and just so that i can reserve a few minutes for the next issue i would just refer the court back to those cases and state that when they are in the nd or makes an negligent or intentional misconduct by a federal employee that the lawyer is a layer that does not implicate any reasonable social economic or policy and the discretionary function exception as such should not apply and i think interesting leave that district court actually this is on joint appendix page one hundred and fifty in the section one of the just report was discussing the scope of the final question made a comment that in most instances an employer is not protected by sovereign immunity from a negligent hiring supervision a retention claim which entirely contradicts the holding of the st issue but turning to the scope of employment issue very briefly with my remaining time again i do believe that this question should have been subject to discovery under this court's decision in the current case but ms malarky even under what could discovery possibly on earth that would make the conduct here which is conduct has to be incidents to the performance of one's work duty used but the court has also said this is a maryland court of appeals that even a conduct is in direct opposition to the masters expressed in positive orders that can still be held to be within the scope of employment if it's incident to the work duties and here i think to answer your question about maryland law there is no maryland record of decision that i am aware of or have ever been able to apply and in fifteen years of practicing medical malpractise that  answer to that question is yes in the context of a mental health care provider because mental health care providers are uniquely situated and this is to answer your question what does the average i think what have been able to elaborate on this question because it would have taken depositions of this burns's to burns's supervisors to learn more about this program how the program was run what her job expectations were and have the benefit of expert testimony to explain that the therapeutic relationship is a unique relationship and in this particular case the allegations were that dr burns manipulated that relationship of proper therapy by saying things like mr lindsay needed to have intercourse with her in order to avoid and to get over his intimacy problems to have eye contact with her to get over his intimacy problems to get over his feelings of being gay from incidents that had happened to him when he was a child that is taking that the personal action by the abuser so to speak up thinking if you all play out of or argued something to the effect of saying that these actions had no therapeutic purpose which would seem to make it along the personal lines and if i'm remembering correctly the dr went to great lengths to keep secret the relationship so it seems like you've got some difficulties both on the foreseeability and the personal aspects of the scope of them point i think that is where discovery would have provided more and this is what has been found in the other pieces that are cited in my brief that is in fact in this unique relationship part of our incident of the scope all right thank you  appellants counsel left off and that's discretionary function the sovereign immunity is to be narrowly rude and the exceptions being what they say  ants counsel the concern expressed about the lack of discovery is somewhat here because appellant's council sued dr burns individually in her individual capacity in state court and while the motions were pending in this case took her deposition in that proceeding in state court so she did have information and has information there's about what dr burns would say about what her employers knew about the relationship and and  the court pointed out correctly the what the government learned with the v a learned in this case was that a another patient another veteran filed a complaint against dr burns it was not sexual in nature but it was a complaint and three days after that the v a terminated her clinical privileges yes ok yes right ms nichols the the this is not the government's information nor do we believe that it was information that dr burns disclosed to counsel a point you know that you're saying that the v a did not know about this the wedding they were supposed to have been that's correct your honor if you look at the complaint this is joint appendix eleven the statement is upon information and belief the supervisors knew and had a meeting that did not occur with respect to the wedding it was not known to the v a and in fact if it had been known mr lynn's had the opportunity actually actually but i august were taken the allegations of the complaint at this point we don't have discovery so if the da didn't know about the wedding that they were to it in what relationship at that point if they knew that would be correct your honor the allegations contained in the complaint as i stated earlier either in the complaint or in the briefing there's the representation that the v a told dr not to go to the would your honor that is a statement made on in for upon information and belief before counsel took the deposition was there something else that the v a was supposed to have done at that point the the policy the zero tolerance policy does not demand a separation of the therapist and the patient that would have been perhaps the steps that could be taken but where where where i must post a look where it says it does not demand the separation of the therapist in the patient your honor that would be in the that would be in the that would be the v a policy that's joined appendix fifty nine appendix fifteen and that is at a minimum the supervisor will assign the alleged abuser to duties that do not involve the liberty of patient care to the alleged victim and the supervisor will instruct the alleged abuser to avoid all contact with the alleged victim at a minimum yes your honor that's correct ok that's what i said before and you said that what that they didn't have to do that the other question becomes what is the investigation that is undertaken by the v a to determine the credibility of the allegations right and that is and that is under f yeah that's after the at a minimum remove the the the separate the two yes joe ok go ahead if the other issue is with the extent to which the invitation to a wedding assuming that it is true is sufficient to st bring the conduct within the scope of employment and also to deprive the of any discretion to take action on that count and the district court found that the allegation was not sufficient to  either purpose in particular scope of employment assuming that the v a knew the v a undertook to deploy to terminate her clinical privileges after another veteran filed a complaint and  it was going to go to a wedding with mr lynch so i guess the question is what makes that one event and action that it would require  are some duty under patient in a b c so what what do you say that they have what was that evidence or not evidence of patient abuse if that's all you've got to go on what what is the fact that a patient may have invited his therapist to a wedding does not of abuse on the part or may not implicate patient abuse on the part of the therapist which is what may have been the case here that's that's what i'm trying to get at here if that's and apparently based on the complaint that's the only thing known to the v a was this wedding invitation on the part of the agency at that point but and what's your argument there but you're out of the r v then relates to the facts of this case the the fact the  discharged from the v a but the relationship between dr burns and mr lim's continued it continued through june of two thousand and sixteen after the other veteran made the complaint about dr burns after her clinical privileges were terminated after dr burns resigned from the v a and yeah after she resigned from the v a that relationship continued which you know indicates that had the v a removed dr burns from h therapeutic duties the relationship would have continued the relationship had nothing to do with the scope of employment did not advance the business purposes of the v back to the discretionary function exception in u i'm having trouble seeing the for circuit law has categorically bar negligent hiring under the discretionary function exception in souter when that is just in a footnote and also doesn't provide any analysis at all so how is or do you think that the categorically barred negligent hiring under the discretionary function exception the question really is tied into government knowledge the at least the discretionary hiring decision because that turns on what what did the government know about the employee to potential employee when the employees why do you think that the do you think that the th circuit has standing on its own judge but it may not be barred if there is a knowledge component that is attendant to the hiring decision and particularly the facts indicating that the employee should not have been and i think i think this case didn't understand opposing counsel to emphasize the hiring pork it was more of the supervision and retention part yes  the maybe i'm fixated on the wrong thing here but it seems like that the whole crux of the point of case is that the invitation to the wedding once known to the v a was patient abuse under the zero tolerance policy and that's what gets her to to having stated a claim that would get passed a motion to dismiss so what tell us why or why not and if you can point to in the policy why that would not be abuse of course that begs the question of why it was abuse but it seems like to me if if that was not abuse that came under the policy then point it doesn't have a case your honor the perspective another perspective to look at this if if i may suggest answer that is no and if the the government the v a had no reason to know no basis to know about this sexual misconduct that's one element of behavior on the other side of it you've got an invitation to a wedding and assume the government knew about that well the sexual misconduct and put that  yes i might be confused i know imus i think i misspoke earlier when i said probably said negligent hiring and i'm in negligent supervision but i think what at least i'm looking for and maybe a judge a g is as well is assuming the allegation in the complaint about the wedding attending a personal of been outside of work is true as we have the all we have right now is the complaint does  wedding that there appeared relationship with the patient under this policy not under this policy your honor and not under policies of the american psychological association  government's negligent supervision negligent retention is a discretionary function but there are always cases and there are always facts where the court may reexamined that holding in another case and say but in this case with the information before the court in this case when we know that the conduct that's alleged relates to attending a wedding we have no other background conduct that perhaps there's another there's another way to approach it and the court may say the discretionary function is not absolute if the government knows as alleged that there's a plan to attend a wedding i think that knowledge and i believe that's what the district court was referencing in the opinion about the amalgamation of discretionary function and government knowledge and the effect of u lose on the vicarious liability issue is is it over the you have a separate claim that we need to consider that is the negligent supervision or correct your permitted to proceed on the other with respect to the discretionary function except and that also is a cube part analysis so i think we've talked a lot about the zero tolerance policy i don't have much else to say about that but i will just add that even if that policy does not drive a specific course of action that was not followed here there's still another way for mr lindsey get around the discretionary function exception and that's because that the cream court has said that even if there is not is an element of choice the choice must be of the nature of the exception was designed that specifically decisions based on public policy and i think judge made a comment that it would be discretionary at the government to determine what to do and i respectfully disagree i don't think that those kinds of decisions when the government has knowledge of an inappropriate action or a dangerous condition and that they are  out in a non negligent fashion and so if you're not maintaining a lighthouse then you are liable under the discretion and the discretionary function exception does not apply and that is the principle that i'm advocating here it's  this is a case of per se billeted you know i think that this is a case involving it well it's per se if the if you're zero tolerance policy apply and i think that answers the question but like i said political or economic policy that allegedly was implicated by the decision to retain and not supervise dr burke we don't even have an argument as to what that was and i think the policy is that sufficient in and of itself to get past the motion to dismiss if there is a policy out there and the government actors failed to follow prisoners and the courts have said that when that if government had knowledge of an unsafe or dangerous condition and they do not think there is no social or economic policy that will take that and therefore the discretion discovery i was not able to depose the supervisors to find out specifically what information they had and when they had it and the fact that that relationship continued after dr burns was removed for patient care the government had knowledge of that wedding long