is reasonably precise specifications for the maintenance of that aircraft the three issues presented on the appeal all just in this order st of the grounds of summary judgment on the government contractor defense the nd is the application of the death on the high appellee here did not comply with the government's reasonably precise specifications it did not properly troubleshoot the one thousand six hundred and sixteen relevant malfunctions and this aircraft was a kurd and the days before the mishap flight control movement now st of all in the chronic nature issue the sixteen malfunctions that were recorded by the air force are only the relevant malfunctions that are listed in the brief there were there were other problems with this aircraft that we have not cited but the sixteen and i think that's a significant number that were cited show a chronic problem where the hydraulic or the landing gear in the flight control systems which are all connected have failed in the days before th this way st of all even the discretionary nature of the paragraph seven point one that you cited leads us to a jury question a fact when there is evidence presented to the contrary i nd i'd also point you to page seventeen of the it a failure if that's how we would describe it to do something that is entirely within the discretion of the contractor how would that be noncompliance with a reasonably specific specification drawn or the specification calls for a root cause investigation calls for a if not and so on the issue of an impound meant that is discretionary but the specifications themselves require root cause investigation of problems of this nature of which are ongoing and continuous and i would point the court  o the district court's order on page seven that docket one hundred and thirty four dollars the issue here is that the district court accepted that quote all of the foregoing problems addressed and corrected as they presented that's an accurate statement of the facts and that's what leads us to a question of disputed fact that the district court us just accepted the police p representation that all of these sixteen problems which kept popping up were addressed and corrected they were not addressed and corrected they were ongoing continuous and systematic and that's what leads us to the jury question under the vacuum out of the discretionary the empowerment of discretionary but the obligation to investigate root cause a termination is not discretionary and i believe that part of seven point five was squarely addressed in the briefing quoted on page seventeen through captain ewing but it's judge anderson right or wrong i think he's right that you can tell me he's wrong that you didn't make an respectfully sir so it says in my expert opinion as a career maintenance officer commanding officer of tactical jet organizations this messed up should have been granted this mishap aircraft should have been grounded aren't counted as per air force instruction commanded to move during the pitch over i checked the flight controls were commanded to move and did not move as they were commanded and i believe that is a failure of the fly controls to move as commanded as a was not presented squarely to the strict court and again i would just agree with that because the expert reports were brief and clear and concise on the point they were  cited in the briefs opposing summary judgment before the district court and they were considered by the district court but the district court again the issue is that the district court accepted and the evidence shows that they weren't and also the evidence shows and i i might point out point out that i think this issue is this positive that this was squarely in the briefs also invented its own procedures went well thank you judges may it please the court michael schofield for the happily formally defense support services i believe the court has correctly hit the nail on the head with the question that was underlying district court judge did a very thorough job of reviewing all of the evidence and in fact the apple least submitted the entire transcripts in order to give the court the opportunity to make sure no stone was unturn to make certain that the summary judgment if granted was a solid summary judgment two points i will address right off the bat on the government contractor defense and then i will address the dosha even though our dosa even though we do not believe we will need to get to those the government contractor defense clearly applies i believe the other side has a sensually conceded that fact and that the only issue in this case is was there evidence of a failure to meet the reasonably precise standards that also appeared to be stipulated to in this case the only two issues seven point one and seven five interesting nearly enough or from a made tw air force twenty one dash one a one as submitted by my opposition which is post crash so we don't even have before this court which air force twenty one thousand one hundred and one was a clickable at the time mandatory impoundment and that impairment decision is to be made looking up above under seven dollars by the in exchange that is the maintenance group commanders c c s or equivalent we don't clearly if being a term of permission or i would say it is up to the person who is charged with determining if empowerment is warranted and even then even if it was mandatory and seven  retract you impound it until you do seven point five which was where the primary thrust a moment ago was being argued also has an interesting word that the court picked on correctly seven  six following an uncommanded flight control movement it does not say following any flight control movement that is questionable or following a movement that does not occur it says following an uncommand and i'm not aware that any of the experts address that precise issue either that is correct your honor it is not precisely addressed it would be a key component an necessary burden of proof for the plaintiff on their case and once we submitted to the appropriate motion for summary that was supported by affidavit and testimony that we had followed all precise specifications which would include this one and the affidavit of david olson goes directly to that the burden shifts to the opposing party to put forward either a witness arts expert in a case like this i would submit it should be an expert who says i'm familiar with air force that requires what he called a root cause investigation tell me about that is that mandatory what is the root cause investigation was that done your honor i have perused these contracts as have my clients and we can find nothing that uses that term or a similar term in the air force that was testimony of a colloquial phrase if you will from the experts from plaintiffs that what they would have done and the district court judge vinson correctly relayed some of that in his well written order and said to the hypotheticals of what the navy experts would have done what they would have done differently do not point us to clearly defined and explained here's the specification that was breached here's how it was breached and why p e should not be entitled to the government contractor defense so i guess what i'm just going to say in section that says that in these thousands of pages that were submitted there would still need to be testimony by someone that the section was a playable and that it applied to this aircraft at this time and it therefore from that section it is similar to and i will shift for a nd to the argument you just heard that p a went outside of these that is based upon testimony again from plaintiffs experts and from ph witnesses that following their maintenance they did what they called a confidence run simply starting the engines putting the aircraft through on the ground pressurising the system testing the systems similar to if your mechanic changed a part in your car and that was all that was required under the specifications but he decided to go ahead and start the car to make sure it ran there is nothing in the air for specifications that says you cannot do a run an engine run a confidence run as our people called it turning to t o one dash one dash three hundred which i know was there was not much time spent on the initial but i want to address that four point one checked flights which was cited says in the nd sentence such flights are conducted when it is not feasible to determine safe or required operation by means of ground or shock test so again it's not that a check flight is mandatory after dyspeptic it or maintenance on this aircraft for example changing a hydraulic accumulator or changing a broken clamp or even changing a switch that allowed the gear to go up or go down you specifically need to look at the rules and regulations and say can we safely on the ground  following command flight control movement seven point five your honor says an uncommanded flight control movement so if i go to put the gear up and it doesn't go up that's an uncommanded not that's a commanded non movement by definition that's not an uncommanded flight control if i'm flying the aircraft and the gear suddenly goes down on it's own without any input from me especially on the f sixteen being that it's what's called the electric jet that would fall in the definition so once again you would need some testimony from someone explaining in defining on the part of the appellant how that fits within that regulation and we go back to the initial comments by this court that it is in fact the missing information that was the problem for the underlying plaintiff appellate in this case so  that and i'll try to be brief and to the point that particular witness also goes on in his deposition that if you have the page exactly in front of me to explain that he is not that familiar with the air force thank you ma'am with the air force requirements and by his own description he has not described an uncommanded movement to fit within the definition so it best it is i believe the underlying judge called it hypothetical or another word that was an excellent word you know describing the mission possibilities and so the court is not required to go to those extremes in order to deny a summary judgment i'll use my in p o because the description was the pilot must push the stick firmly and hold it as he pushes the other switch and the ground up from her stance with respect to that there are no other expert rippin yes respect to that your honor there are none submitted by the appellant in support of their position clearly in this case addressing the last arguments the crash occurred sixty miles offshore following talon tar in the line of cases the death on the high seas was actually written that in order to promote the efficiency and the economy and the uniformity of the intent that in fact we have after telling tar the korean airlines disaster we have seemed to me like the act of just been written to say that when the death occurs on the high the act was rather than when the negligence occurred in the high seas you are what has happened is that the cases have simply taken those that language and explain what was intended and they say what the combination of the events takes place that results in the death on the high seas and otherwise you get into the situation where you have  negligent act that occurs in the making of a part in texas that's put on in atlanta by the mechanic and then a failure of the pilot to recognize the warning like thirty miles off shore do you have passengers bringing cases in four different states as well as under dos and every case since then has gone down the same path and we believe this court should likewise follow as this court has done before in a case and rule that in fact it is the locality of where the culmination of the events come together that creates a situation where the death on the high seas act occurs now once it applies we also know there that this was a non commercial aviation activity there were no passe cargo being carried even though it was a civilian thank you ma'am even though there was a civilian d o d pilot on board therefore he is limited in its damages and because it's under maritime there is no right to a jury thank you your honors for listening unintentional actions and subsequent loss of evidence now the investigative evidence to systematically proceed is the root cause determination so that is the spot and air force instruct opined and said that there should not have been a nd check of the picture override that and i guess if the question is are we defining what an on commanded flight control movement is the answer would be the air force i'd like to just move on and address one issue that i didn't touch upon in my initial argument that i believe is relevant setting the hodgins factors aside for the government contractor defense i believe that the actual government contracts in this no your honor and here's why because the government will exercise no supervision well it even if that's the case you're on i would say that that mr course was a rd party beneficiary and i don't think that that can be fairly argued with you rd party beneficiary but regardless the government is to exercise no supervision or quality assurance and in fact that's written in the contract number one a number two the deposition testimony bears that out that multiple mechanics testified that the government quality assurance inspectors were not even allowed in the same vicinity of the aircraft while there was being work performed on it by the apple e number three the government required p a to obtain and maintain liability insurance and they did and they do and that insurance has provided the fence and its actions with no government oversight i'm looking over my notes here on what else i wanted to address can you just address briefly my expression i suppose on the plain language of the death on the