issue in front of court this morning is whether the discretionary function exception to the federal tort claims act applies where there are federal regulations and federal policies that specifically prescribe a course waiver of the united states sovereign immunity from tort claims brought by individuals against federal employees who are acting within the scope of their duties of their employment there are think i take your argument to be that the failure to follow a non discretionary procedure in this case was the but for cause of the terminations which otherwise might be a discretionary call but then plea have to go back to the to the underlying force or the underlying cause which was allegedly a failure to follow the procedure of passing this to an independent body to investigate fully exactly that that's correct the there are federal regulations on point twenty five  enforcement departments they have to implement and have minimum qualitative standards so that at least match those expressed in the b a a law enforcement handbook in the are the specific handbook policies federal policies that dictate how the tribal officers were to handle a complaint of misconduct  of the tribal law enforcement officers and specifically can i ask you to paragraph fifty of your complaint you say that your request for an appeals committee decided to the b interestingly a handbook was actually raised in the tribes terminations letter or what the tribe called their appeals committee terminated after which referred to  and that's the tribal appeals committee letter confirming the terminations and they purported that they had that they were confirming the terminations based on  handbook but in fact their their record shows that the tribes did not follow the b a handbook not even close to the heart of this issue is really that the tribe was required to pass along their complaint of alleged misconduct which in this case came from the nevada department of employment and training rehabilitation trying to pass that complaint upwards to the chief of police within the tribe and it says that no will miscreate investigation was conducted by r s i see which is reno sparks indian caught here to my innocence and therefore they have no evidence but it doesn't and it says the appeals committee should look further but it never says oh you didn't notify the professional standards division as required by the be a hymn book or by twenty five see how far ok i think i'm following your question now and if that's the case that may communication from mr miller to the tribe essentially saying i'm innocent i would like to follow the appropriate it ministry of investigation process like and defend myself it sounds like what he did was he cited to the tribes handbook which it as an officer in that situation is trying to defend himself he may have immediately gone to the to the tribes handbook but that's not the critical cart what's at stake here the critical part is that once mr miller had had communicated his innocence and actually but most importantly before the tribe had decided to terminate mr miller the tribe should have known that it was required by federal regulations and federal relevant the relevant part is the tribe failed to follow the prescribed conduct that the federal regulations and federal policies on point here mandated if the again if the brief is that again the heart of this issue is that the triage went about receiving that alleged d misconduct and entirely the wrong and if they tr point here dictates that the government actor now followed the prescribed course of conduct or in other words the discretionary control d in federal regulation statutes and policies and that that did not happen here had the tribes done that what they would have discovered or what the professional standards division would have discovered when they commenced the investigation and started gathering facts they would have quickly discovered dieter was was actually mistaken that mr miller was the victim of a of a crime he was the victim of identity theft and that dieter very quickly after telling the tribe that mr miller ma this this false claim very quickly communicated with the tribes that hey we actually think that this is fraud we're investigating this it turns out to be a big identity theft ring out of florida  used mr miller's name so if the proper course of conduct had been taken to the triage or the p s p rather where the agent appointed to do the investigation would have quickly gathered facts would not have immediately terminated mr miller at most would have put him out administrative leave and then would have begun the investigation communicated with mr miller about the status of investigation communicated with peter about the facts of the of the alleged misconduct and would have quickly learned that this is a mistake and this officer should not be terminated none of that happened try to ask for an investigation to prove his innocence none of that happened and we end up with a result where the tribes law enforcement agency which is whose goal is to provide quality law enforcement services for officers and as part of that goal is to determine whether alleged misconduct by officers d is confirmed or not those goals were entirely thrown out the window and we end up with an officer whose reputation is is very damaged and who was terminated essentially for being the victim of a crime and with that i would like to reserve my remaining time if there are no other questions right now i'm relieved there are not at the moment so you may reserve and as fr provision prescribes the circumstances for discharge five try now i counsel has asked that you consider the c f cards for the st time on appeal claiming that they present  shortly legal issues and that there are no disputes of that but actually there are some issues of fact with regard to the application of those provisions which i'd like to highlight for you first of all i think there's been complaint yes you know what about how do you deal with the vicar's case because the biggers case seems to suggest that a player based on a mandatory duty to report to higher ups who are supposed to encompassing the vigorous case does say that hey challenge this decision need not actually be grounded in policy considerations so long as it is by its nature susceptible to policy analysis and what that cancels counsel left i think they're here maybe i mean i have a different question then judge counts but if if there is a mandatory procedure that has to come before it terminations decision is made and the mandatory procedure is not followed i don't understand how you can then say well it isn't really mandatory because the end result turns out to have discretion let's say i something simple like you cannot be fired except for you know health commission of a crime without getting three warning senate grants and you got no warnings and it was you know being late you didn't commit a crime is it your position that notwithstanding a mandatory regulation the ultimate decision is shielded even though mandatory procedures were not followed  in these procedures are not me and tory i mean i think that's the other point i want to make and the f t c it does not provide for a claim for violation of procedures discretion because the thing that wasn't done wasn't discretionary no i understand you're saying it actually wasn't mandatory that's a different issue right if i could if i could the amount on that your honor there is no federal federally mandated procedure here take a look at for example twenty five c f r twelve point one four he has relied heavily on that in the briefing and that appears to apply only to law enforcement functions and the language i just read to you whether there are allegations of office or misconduct and my reading this wrong no your honor but the if you look to the references the b i amy and will it reference as a law enforcement handbook i don't know if that reference to the law enforcement handbook is the same as the handbook that is referenced in the complaint because  because the nd amended complaint refers to a handbook that is different it has a different title than that one so i'm not sure if it even applies how but even handbook override have federal regulation my position is neither the handbook nor the c f ars are relevant to discussing the application of discretionary functions and focuses on number one do they have  there's no procedural requirements there's just discretionary function terminations if someone is terminated because of a demonstrable lie is that protected by this discretionary function exception and i'll give you a clear example in case you don't agree that this is the situation here let's say some of this grant old ex alice simply makes up something and reports that their spouse who's employed has you know robbed a bank in is unfit to be employed anymore can that just result in a firing even if it's absolutely one hundred percent false and be protected and you don't think that the discretionary ocean exception is very broad in all encompassing and we know that because it applies regardless of him an employer subjective intent it applies whether or not the discretion is abused it is construed strictly in the government's favor so you're saying yes to my you can do you can do that and be protected i'm just going to call now thank you your retaliation or discrimination claim via the f t c a he faces this huge jurisdictional hurdle that is very broad and doesn't look behind the curtain at the nitty gritty of the allegations of  instead the focus is on the nature of the conduct the determination the nature of the action so he said it your is it your decision is it your position that no matter the reason and no matter the evidence about that reason they're there any decision to terminate is insulated period with no exceptions even you know what about this policy question no it is not insulated i'm just trying to focus on the correct analysis to overcome this very broad discretionary function exception you have got to find a federal provision that requires a different result you don't focus on the nature of the allegations because that's what the case law tells us we're not going to nd guessing a government decision we're going to focus on the nature of the action taken we're not going to look behind the curtain and see the nitty gritty of the case and something i'd like you to consider as i say give you the government's approach on this if otherwise you're going to have a mini trial in every employment case at the jurisdictional level because the allegation here wrongful termination i mean every employment case is alleging bad faith and inappropriate conduct but i don't think congress intended at this he being rolled over functional level that you get into a mini trial of the merits so i respectfully disagree with focusing on the nature of  the specifics of the allegation instead you focus on the nature of the employer's action which is here the decision to terminate is that susceptible to let me ask you a questionnaire sort of a follow up on what judge wright for just a if i understand your position no matter what the claim is by being fired employee that they just simply have no remedy so even if if the tribe would fire them solely because he was a white man or soley because of his sexual advantage of whatever remedies are available there and here you know curiously if you look at his appeal to the appeals committee he didn't raise this retaliation issue you know take a look at excerpts of record ninety one he very he says no administration investigation was conducted he doesn't say i was terminated because of reporting harassment and discrimination so no your honor i do not believe litigants are losing on remedies under this scenario you have to keep in mind this is a very unique narrow contacts hardly ever sang i gather he loses all federal rem is that what you're saying i'm not you know i you know i don't know because i don't know what remedies he would have with the tribe because i don't represent themselves so no i can't say that your honor but what i can tell you is this is a very narrow foreclosure of a remedy papers that were filed throughout the nearly two years of litigation he never hosed our motion to dismiss by asserting that hey united states you miss one of our arguments did i tried like you to take a look at the district court's decision i think the district court hit the nail on the head when she said that mr miller has not pointed to any federal authority indicating that t full discretion over the ultimate decision of whether to fire him that is the i think the dispositive analysis here there is no federal provision that requires a different result here act as a law enforcement officer of the tribe to the government has raised the defense and the case was dismissed on the grounds of discretionary function exception as we've already discussed the st prong to that is whether there are any mandatory procedures that the tribe had to follow and to to rebut the last point made by pows and counsel there according to the b i a law enforcement handbook the final authority with whether to it deter disciplined or terminate mr miller rests with the professional standards division of the i a e a that is all part of this because when the united states exposes itself to lie to liability under the federal tort claims act pursuant to this contract the united states understands we need to have some policies in place to make sure that we limit our risk on what might happen in the field with officers or alleged misconduct against officers that's why the c s f r twelve point five three consequent out says that the supervisors and the chief of police must refer the alleged misconduct up to the to the p s t to be i a law enforcement handbook the opposing counsel says she's not to the case law that that is on point it's very clear this nationally function exception does not apply where there is a federal regulation or  policy on on point it doesn't matter if it's terminations of an employee if the government actor was required to follow a course of conduct they cannot reach that terminations in tower and unless they follow that that c into on the amount of time i will address the nd prong if if your honour's would d would like very very briefly just thirty seconds or so there regarding whether the challenge action is one that is in further the agency's goals and objectives it cannot be said that a bad faith acts or intentional bad faith accept the hypothetical of the terminations for a demonstrably false lie that cannot be said to be  concept with the nd prong is to make sure that the government is not held liable when it's when it's taking actions that are subject to political and out policy analysis and that may be in furtherance of the agency's goals and objectives but when are on point is to determine whether the type of conduct the conduct was the type that the government should be shielded from judicial nd guessing and where the conduct is is clear  in intentionally bad faith act that's that's just not the type of conduct that really can can legitimately be in furtherance of a policy objective from any federal agency so that might my argument is the