in good standing with the highest courts of reaching and the district of columbia i have knowledge of his credentials and am satisfied that he possesses the necessary qualifications i know these things judge laurie because mr ewart has been my clerk for the past twenty months and in that time he's been an important stabilizing influence and i sometimes chaotic chambers and i've always appreciated that i've gotten to know him  and he came in already as a fantastic lawyer and i think he's leaving twenty months later is an even greater one but much of that is due to his own abilities in character and intellect i've enjoyed my time with him in terms of sharing ideas about cases in the law and i've also gotten to know his wife trish and and daughter vanessa  and look forward to seeing them go forward in life and i know that they'll always be part of my chambers family and for all these reasons i urge that my motion be granted thank you i feel the need to speak separately because it's very unusual for this to happen but on multiple occasions given that i couldn't handle my own workload i had to reach out to judge chen for support and he let me jake jake actually help me with akamai might be interested to know after twenty versions of akamai i i got to the point where i could no longer even read the words on the page and i needed someone objective to come in and read it someone who hadn't written twenty versions and jake came in and helped me tremendously i think i had told her chair would take two hours and it took like two weeks but he was a great resource and then he actually drafted a recent presidential decision for me because i just needed some extra help and so i mean that is very unusual for us to to share clerks to chair was very generous with jake and it was all very unusual t share my my great my great fortune to have gotten the opportunity to work with him as well as i certainly don't know him as well as judge chen does but i am happy to echo his support and this is because they would not know the extent of their damages until the government completes the temporary taking so what would cripple adds but one of the problems i have with that argument is to look for oh wasn't connected as a temporary everything is a temporary taking a look for a clearly was by its own terms at inactive and it was a temporary measure but live for was not a temporary taking you had no reason to think congress would ever change lift it was an act as a permanent taking and only upon hopes an exit in ninety six did it actually converted into a temporary taking by congress choice to cease to apply the law of love so in a scenario like that where you could go hundreds of years from a statutes an accident that deprived you of a right and then one hundred years later that statutory deprivation is lifted by another statute you think that's a temporary taking and the rule for statute of limitation should be that you have six years after the end of the hundred even though for one hundred years you thought it was a permanent taking not a temporary one well i would say as you enter you know the issue of what might have been a because it doesn't deal with the logic of my question my question was if congress and actively for a and then one hundred years later withdrew it in hope you are telling me that because they withdrew it in hope one hundred years later that there on of an otherwise permanent taking a base on the information a very very quiet yes but your rule of law that any later withdrawal by congress converts it permanent taking into a temporary taking and therefore the statute because if this was a permanent taking we would all agree a cruel would turn from the date of new or reasonably should have no right and to your point is that a much later in time w of a permanent taking to convert it into a temporary taking holes the statute of limitations what could be centuries well i would say since we know that's a hypothetical let's look at the end of that taken care to determine whether they knew or should have known because that's the critical time period for such a taking i don't think that you know one hundred year long period would be i think too long for a probations with some limited exceptions for a reason and i think part of the reason was because lawsuits like these were being filed but congress recognized that it no longer wanted to continue what was done in under those circumstances there's no reason to go back and reconsider what is in really the limitations period should begin to run of the end of the regulatory action and look at what's on the other side of the case what is on the other side what other decisions are out there what is the quote of federal claims decision below there isn't any supreme court has improved baker addressed as applied taking its discretionary takings which is what this is first is non discretionary taking and improve baker it said for non discretionary takings the date for rightness and accrual is the date of enact meant the facial but that's clearly not what applies here because this is a discretionary takings so what should the data be for challenge in that case and the court really did have an opportunity to determine whether a claim would accrue under the statute of limitations for this sort of a claim i would say your honor of the quote only it determined that case the claims were not right because the regulation in fact in that case never went statute is changed if if if it could trigger a temporary taking that was one hundred years in the making and which is the exact opposite of what the statute of limitations is trying to do which is gather your information and go forward with your case as quickly as possible so it and if you look at it it creates a problem on the whole for the property owners for the it creates a trap for the current government and it creates a burden on the court for property owners when a statute is passed and they don't know whether it's temporary or permanent they should bring the action right at that point and and they should bring permanent action as the as judge moore suggested should make it a permanent they can claim and if somehow the permanent taking was truncated then they can as a lot like a holden to mean us property owners cannot sue for a temporary taking until the regulatory process that began it has and i don't know if it's if we have issued this sort of command and it has in fact followed by a court of federal claims cases not necessarily our own cases but court of federal claims cases and has not really been significantly called into question by our own case what does that mean for a property owner who supposedly suppose they waited in reliance because of this suppose because this language propagators can not sue for a temporary taking until the regulatory until the end of the regulatory taking and crippled was the standard the law at issue but it really be fair to fault them in light of this language incredible you're are so there's there's a number of things or some i'm going to try to hit them all i'll start with the that's the question and it turned out because the taking began in seventy six and ended eighty four every fact every part of the temporary taking was more than six years before the time so that the answer to that question is yes they were all six it didn't matter it was irrelevant whether the court started counting at the beginning or the ending and in fact if the court reached the completely different reversed decision it would have affected the outcome that's how we know it stick to what th unnecessary statement that is unnecessary to the decision in the case and therefore not presidential and that would be i agree judge moore that they used the language of the holding but it was in the nature of and  right there's more over whenever the court says more over the much everything that comes afterwards is it's a good candidate for being the alleged victim you know and that's that's that's a clear case those are those are easy cases the court said we also would have held these are easy cases for dicta this is a harder case because the language of the holding clearly establishes what it think it is that it thinks it's making is a rule about claim a cruel your argument is it didn't need to go that far because under either rule this particular case would have come out the same way i would see it on i'm not positive that the end is not the same thing as saying you have to bring it earlier which is what you're saying are true because i mean look at all these awful nuclear waste cases that i have to deal with because they keep getting brought every six years because the you know what it is but you see that you see the point is is that you know obviously in a case like bass it's possible if the temporary taking is going to be able long duration you want to allow them to seek compensation at an interim point and then s court went on to say this court has previously rejected the notion that the cessation of a regulation is a necessary condition the liability of the united states for a temporary regulatory takings claim and it rejected the plaintiff's claim they were kept out of court based on if cripple had applied if they had had done what the plaintiffs are asking for those plaintiffs would have not been pushed out of court crevel was cited for basically an i c also for it but basically a different proposition for the idea that a case must be right before you can bring it discretionary holding a discretionary takings a cruise or turns right is not the date of an act with the statute for example which of the they left was an act that it's the day that the agency took action enacted is the date the question about when it's applied to these plaintiffs these plaintiffs have themselves pled that it was applied to them at the time that they could have offered the money it in first prepaid in their complaint they said that the taking began on that date so why it could be argued that the and we have in other instances argued that he should have gone through the application process and sought permission to prepay and if that was rejected and so that then these claims we can be right because they never asserted that it would have been if you talk we are not challenging that fact on this appeal and so that is that is why the date starts from there and just so just to be clear because age eleven of your brief which you don't need to pull out right now but on page load of your brief that you indicate that because they argue it's futile this claim had to have been brought on the day they could prepay you're arguing that into the facts of this case and the review i just want to make sure that i'm right about that in that you're not stating that the example say somebody six months before they could be paid they went and tried to prepay maybe early and they were told look you've never prepay that could start have started earlier if they had gone through the process taken two years to go through the process and then they got a final it could applied if they got a final no then that could have been the date but if if in face on their allegation which we are not challenging that would have been futile under the circumstances your first opportunity to prepay is the date went wrong if but but the one other cappy i want to bring up just to make sure that we're on the same page is when it comes to futility right maybe i suppose it wasn't futile on the day they could have repaid suppose that the agency began by granting lots of prepayments but then had a change of heart for some reason and started to deny all future prepayments at some point in time such that the futility idea really didn't kick in for the day they could have prepaid but kicked in a few years later it that ahead and go through the process and if it's some point it's it's like forget it nobody's getting through and it's understood that if you time then that would trigger it even if they didn't have a final decision that could trigger but but of course rules in an as applied universe because in as applied universe under baker it seems to me that they could be different for every person it could be if especially if everybody it in as applied universe that's it's not futile everybody goes through this process and everybody gets a get to know it different times or a yes and then they're off and no at different times then it would start when they got the no so yes an up and as applied universe can result can provide two different neighbors with different results some dates congress might change this i'm going to wait until the first one could be litigated resolved as a permanent take another one maybe they guessed wrong and so it was never a temporary take so they washed their claim entirely or maybe they guessed right but it was fifty years and completely different analysis based on the fifth year looking back so what the plaintiffs who are giving us you could have a different result for different neighbors it also is unfair for the government in that every time the government passes any regulation or statute it has to the possibility maybe we've we've given out money on a permanent take in theory but if everything is reopened at the end of the camera briefing for it it would seem fair that if we're going to be paying out money we should also be able to pull back money that we paid on a permanent fix that's not the way it should be it should be or it should be you bring your claim if the government doesn't change the statute or whatever before your claim is finished then bad is when you get compensated i have a question if you don't mind answering the regulatory taking are much more difficult obviously to contend with this cicle takings for everyone because of the test that includes the nature and extent the interference with the right the reasonable investment expectations in penn central the supreme court expressly recognized in footnote thirty six and the government conceded in that case and oral argument that if appellant can jeff demonstrate changed circumstances that could matter let's suppose in the beginning when you first inactive pre payment that this was not even a viable candidate for flipping the condos or charging higher rents or something like that such that they didn't have an interest in prepaying that that wasn't taking at that point but it really became a taking later because the economy changed in a way that really suddenly resulted in a pretty significant diminishing of value for them a diminishing that wasn't present on the day of left but became present as implied in application of a time changing circumstances would always open the door wouldn't it to reconsideration respectfully your honor if the things that changed are the statute or regulation yes if the facts on the ground change then then they need to bring their claim within the  it with respect to the example that you gave it at the time that they were denied the right to prepay if it presumably at that point from the perspective of that point is a permanent take and they're viewing it will never be able to prepare and they would have to look at ok what's that expected burden at that time of losing the right to prepay and maybe they decide it's not such a big burden so we're not going to bring it and it is under pence interim it is a balancing test and maybe at that point it doesn't look like much of a of an imposition that but what they should be doing at that time is projecting and there are experts who i've seen project well in five years might get better than that or better and and the quite and sometimes  it's bound by the imagination of the expert but they could say there is a possibility it will do this and and that's that's what it expert is employed at to do at that time is what is the you know the potential range of possible economic impact and and  stated there that according to the pencil test is the same whether the regulation is permanent or temporary in nature although in the latter situation as a temporary taking the court must carefully consider the duration of the structure of the economic impact problem so there is a distinction that this court has drawn between between the two and duration does become a particular question with respect to a temporary taking that wouldn't apply to permanent take a situation the government's counsel indicated special mutation should force people to go forward with cases as soon as possible and i think that's really essence in essence the beauty of a couple decision and it's consistent with the supreme court's decision in franconia where they of the taking of all the economic impact and the interference with the owner's expectations couple takes that and says will what is fair to say to a person who is the potential victim of a taking with respect when you have to come to court and do something about and secondly it clearly says you don't want them to have to come to court as soon as that taking might occur it seems like that's what you know all the terrorist was thinking about and perhaps this court's decision from franconia we're looking for bright period to put them in a position where they knew or should have known that it was time to bring a lawsuit and you certainly don't want to force thousands in this instance tens of thousands of owners around the country to go to the court of public claims and file taking claims at you know as soon as the door open as soon as the the impact occurred it's far better to wait to see whether that impact was profound enough for them to decide that they had a legitimate claim the payments or did they felt that the imposition of really all of the the best case doesn't make it clear that you don't have to wait until the end of the regulatory taking period to bring a claim but that does not mean that you should be required to come at the beginning of the taking period to file a claim i think that's a fairly limited to somehow read that as overruling a decision that it's that it's citing to all navajo nation said again that you don't have to wait until the end of the taking period to bring a claim and i think that