so thank you very much for having us here for argument this is the first time we've been able to present anything in person we're guarding this claim of the four years that it's been pending other than some meetings with thema to try to explain different aspects of the claim as opposed to having a opportunity to make a presentation to an arbitrator or make a presentation even to the district court we this is the first time we've actually been able to make a denied by the arbitration panel basically said there is no basis for a motion to reconsider under our rules but you are luckily you have found an exception you did not  challenge the underlying merits a decision in district court your motion to set aside the arbitration decision challenge only the decision on the motion to reconsider i want to know how in the light of that we have to cabin or restrict what we can look at in trying to rule on your case because you didn't challenge the underlying decision you only challenge the denial of the motion to reconsider but we're not asking the court to look at at the merits of the claim today we want this coil to i'm not i'll rephrase that poorly it seems to me that by your challenging only the motion to reconsider that's the only thing we can we can take a look at in deciding whether there was this misconduct you're claiming where you weren't allowed to put on evidence or you weren't allowed to use the for your information and it just based on this underlying decision and in fact the only thing you complained about in district court was the denial of the motion to reconsider which is a much more limited standard for relief  each other the and you didn't rip you didn't even file a reply brief when they point this out in their brief again we think they're there they're part and parcel of each other the had the motion to reconsider been granted and we've been given a chance to to argue the case before the the board or that of the three arbitrators then then it would there would not have been any misconduct by the arbitrators but the but the fact is is that thema wrote the rules that we're trying to follow in seeking this arbitration and in the rule it says that the panel the arbitration panel will provide the applicant fema with an opportunity to make an oral presentation will provide that and they did and also under under part i is order that the arbitration take place not that we're not asking the court to look to the merits and with respect to your question judge barksdale on on the whether or not the where asking for review of the rehearing th n again we believe that's part and parcel of the of the of the dismissal of the claim without having an oral presentation but what's important here is that  our expert witnesses get an opportunity to explain this why this is a system well before you get there i'm looking at this motion to reconsider and the ruling on it at page t and it states moves this panel to reconsider its decision then it says l d n r maintains that the panel did not address one of the issues they are going to raise going to request to arbitration which is characterized as being that louisiana's will bury a resource system and the individual not the individual islands making it up or eligible for public assistance grant so it seemed that instead of you saying to the arbitration panel you didn't let us make oral argument you didn't let us present evidence all you're complaining about is that you didn't treat this as a system and again it least to me that is a color claim or our consideration that you're asking for relief from us that is precluded based on the fact you're only challenging the banal of your motion to reconsider but in the in the motion to reconsider we ask panel engaged in misconduct by not allowing us to present evidence or make a real argument well i don't know why you didn't i don't know why you maintain this case as you did because your case and that's what you did but i would respectfully disagree that the that this is this is not part and parcel of the whole thing i mean that the fact is that if the system claim is taken away from us and in the arbitrator said well we don't like the system claim go back and refile on an island basis that's where our heart burn is and that's what we're that's why we asked for an oral presentation was to explain why this is a system that the the the bottom line is that with respect to these islands department put in fifty million cubic yards of sand after katrina and rita that flows in and out of these geomorphic structures out here in the gulf and when when you when you say no system the basis you strand millions of dollars and millions of q big yards of sand that is not on the island but is flowing in and out of the system and these were engineers well before katrina and meet every definition of the system we think that our expert witnesses in an oral presentation would have been able to explain this to the arbitrators and not now what we're left with is only the ability to make an island by island claim which will not make whole the states of the state of louisiana for the restoration work they did but your straw in the us under ten the three that a federal court would take you see this language both that in the forsyth case and a lot of district court cases in louisiana that the arbitrator is not bound to hear all of the evidence tendered by the parties our e much good to give each of the parties of the dispute an adequate opportunity presented its evidence an right when no reply brief comes in that puts all the pressure on you right now with very little time to start answering cases you chose not to respond to well i would say that our best case is not a is not a circuit court of appeals case it's the it's the white v not this effort undertaken to do the island by land claim is going to receive priority the you know i don't i'm concerned that fema may be right in the point you just read which is that  we have we don't have an opportunity to make a systems argument at this point not without relief from this court and judge jackson certainly didn't did you know adopted basically what the what the arbitrator said in  their in their reasons which was that this is not a system and that's what we're asking this court to do is to order that the arbitration take place in the hearing take place so that we can prove to the arbitrator's that this isn't a fact this is a system of violence and not just island by island claims which is what team has urged the arbitrators to do and now even though we've filed these claims on an island by basis i think it it's claims it was your choice to go to arbitration is that right that's right you're on it you have a choice to do administrative appeal through the agency or go through arbitration arbitration seem to be seem to us given the meetings we had  fema and fema region six during the process arbitration seem to be a way that we could convince a neutral or a group of neutrals that islands are in fact a system and qualified for public assistance under the con the civilian board contract appeals to that and we were just told to the judges were going to bed so it's not like a construction contract arbitration clause where you get to go back and forth on who the arbitrators are going to be in fact it's even a construction contract arbitration clause doesn't have the or the requirement of an oral presentation that's in federal law which is what is required here there your honor but a lot of it has to do with the way the easy and legislature rio rearranged responsibilities for coastal protection and coastal restoration by creating a new cabinet level position and then a new infrastructure for this original claims that were made right after the storm or were made by the louisiana department of natural resources the coastal folks from that department there that agency have now moved over to the of the coastal protection of and recovery authority and i would that was before i was hired but i would my conjecture is is that given the bureaucratic back and forth with respect to that reorganization the claim before you today or the claim of the that is at issue today was made in its final form by the new agency although prior claims for other coastal structures had been made  and some and some were paid by fema the claim specifically to these c p r s islands was not made until many years after the storm so i wanted to talk briefly at the end here about prejudice and what the what the what we contend the prejudice the status suffered and we've talked about a little bit already and that's this concept of the of the system and the prejudice comes down to the dollars that the state spent on putting sand into the system that is not on an island that is no or is no longer on the island and but it was paid for and so the the the fact that these that the sand flows in and out is eliminated if we can't proceed on the system's approach if we only have to go out and buy those dollars are gone forever and that's the prejudice we suffer under the on the analysis of the federal arbitration thank you ma'am please the court tiling tre or for the government i'd like to make just a few quick points here this afternoon first that the f a a permits speaking to only in limited extraordinary circumstances circumstances such as corruption fraud egregious misbehavior and of course is relevant here misconduct now plaintiff first argues that the panel was guilty of misconduct because plaintiff was unable to present certain reconsideration which doesn't talk about any of that why are we talking about modeling the room argument or not allowing evidence i guess i'm trying to draw an analogy to the way we would handle this if it were a criminal or civil case  decision that the system of violence does not qualify as a system under the relevant regulation and so it appears out of an abundance of caution the arbitration panel issued a second reconsideration decision where it explained in a more robust manner why based on the written presentations presented to it plaintiff's theory fails and so in this regard plaintiff has almost received more process exist under twenty three without your honor i'm sorry your honor's question is whether their inability to present any expert testimony could hypothetically  ld you comment on this white vs valero case he says is the most apt if you're familiar with it your honor that's i believe a district court yes just and and actually i don't think that that's the most pertinent case here i think is your hono pointed out the laws case the forsyth police and i'm i'm just as guilty that i don't remember i'm sure he sighed in this brief do you remember that white percival our case or not i do know you know her and that's because we've been relying on the well established precedent in this court's cases that again the error committed by the arbitration panel has to rise to the level that it has basically infected the entire proceeding such that it can be said the plaintiff was deprived entirely of a fair hearing and that's not what occurred here by plaintiff's own argument plaintiff's side in this hearing to present expert testimony relating to technical study that it's emitted on the papers to  and so the panel had that study before it the procedures the arbitration procedures contemplate that this dispute resolution process proceeds primarily on a written record and so plaintiff's arguments are misplaced that it did not have the opportunity to present all the information that it wanted to before the panel actually in fact plaintive couldn't submit it even more to the panel than what it's made to the agency in its initial determination so plaintive did have that opportunity to submit all the documents as to what plaintive would have said differently had it had the opportunity to present essentially an engineer at a hearing before the panel moreover plaintiff's claims as to prejudice are particularly misplaced since plaintiff has had the opportunity to submit additional applications for all of the individual islands to show that they're eligible facilities on the individual islands and plaintiff has taken advantage of that opportunity resubmit those applications that request and now you're telling us all of these individual applications are going to arbitration yes your honor those new funding applications were submitted in august of two thousand and sixteen later and there was an initial determination issued by the agency highlighting deficiencies in those applications and giving plaintiffs yet another chance to cure those deficiencies since then a final determination on those individual applications has issued  as of november fourteenth of this year denied on the same grounds and plaintiff has once more elected to take that dispute through the arbitration process of those fifteen individual applications a plaintiff has a chance once more before separate arbitration panels to pursue disaster relief assistance under the theory that these islands housed eligible facilities and so again say the plaintiff has suffered a serious prejudice such that it was thank you and the light bulb finally came out for me judge barksdale i think i know what you're asking about with respect to the only asking the court to review the the rehearing decision by the arbitration panel we felt like that rehearing decision accomplished everything we wanted the court to review and and including both may have complicated the issue so we but all of the issues that were discussed in the in the first arbitrator decision were discussed and the rehearing decision with respect to what's going on right now  we have filed the fifteen individual island by island claims that we were invited to do by the arbitrators the there was a conference call a week ago with the arbitrator's and all parties they were denied and you chose arbitration again right chose arbitration again we get we've got garbage traders assigned they had a conference call on the call fema indicated th intended to file motions to dismiss on all fifteen summarily in the same manner that they did with the the matter which were here before you the systems claim that include all of the island