lower court adopted the unprecedented and anomalous position that the government's mere claim of an offset under the debt collection acts of life to supersede the government's acknowledged contractual obligations even though the government otherwise lacked underlie underlying basis in law for the also the upshot of the decision below is that a bureaucrat sayso combines with the debt collection act to justify an offset by the united states that is otherwise illegal that's a few of the contracting officers to turn off that determination as self justifying is unlawful it is unfair and we respectfully submit untenable and we ask this court to reverse it i'd note your honor is that there is no precedent whatsoever for the trial its interpretation of the debt collection act and judge wheeler below didn't claim to have any precedent for it the american airlines case that we cite came up from the d c district court to this court and is directly to the contrary as precedent because is just recorded determined that a claim offset under the debt collection act was contrary to the substantive wall and therefore was unjustified and what was up on appeal to this court was only the question as to whether the district court was wrong as t principle there's that larger body of process and specifically as to the debt collection act i think the american airlines case is directly on point there are other cases we have found where the analysis was made under the debt collection act and it was all about the substantive logic so it wasn't just well the government checks the boxes and therefore it can claim this offset of the debt collection that it always goes to the substantive will and answers to deceive and resolve the dispute that way  i've always understood judge told that there is some other basis including in that case outside of x turning to the debt collection act yes the united states may have special rights and may if it overpays a welfare beneficiary if it makes  anomalous and problematic about the decision below is that the court of federal claims look at the united states government's premise for the offset that there had been so some overpayment under the p c o contracts and confirm spurious that was wrong that was contrary to the law of contract and that was contrary to the common law and there was no basis for this other than the fact that a bureaucrat who would ministers a contract determine that yes i'm going to a administrative procedures act to among other things the claimed offset and to the withhold to the claims offset or the claim under the p c o contract and the implications that has the monies owed to agility undisputedly under the d d k s contractor that kids today are challenging well we thought that the straightforward past judge goal was to basically say we're owed money under the d d k s contract in amounts or seventeen million seven hundred thousand dollars and counting that is a claim for money damages from the united states in connection with the contract we thought that association and my concern judge hill consistent with the way the government has conducted this litigation thus far is if we're sent back to the d c district court to pursue our a p a claim there the argument will come from the united states th foreclosed because at bottom that is a claim for money damages again citing the precedents that i was just citing where we've seen the government make those sort of arguments i think they will also point to judge wheeler's decision and claim that his race judicata effect as as perverse is that i and they also say what they said candidly to judge wheeler which is that the a p a suit is a looser a because what we can't do they said under the administrative procedures act case is challenge them that look behind the government's claim of an overpayment and challenge the pr dollars contract claim yesterday trying to it does because that money is undisputedly owing to the d d k as contract it is due to be paid the only basis for the offset is that the government invoked in connection with the funds paid out under the p c zero contract that's for the assertion of data to the united states under the iraq contract let me be fair to the united states are trying to because i think they do you make in their briefs and you hear this from judge graham all the an argument in the alternative that judge we were was wrong and there's some common law basis for them to recover those monies but i agree with your honor that that that the premise of that is that there was a quote unquote what they call an overpayment and that overpayment just as your honor is saying relying on certain language taken out of context from the th circuit case in which there was an dispute ripley and gore relationship and the only question was whether two different things mean offset were sufficiently related but within the universe  obligation that they work to set the eighty million dollars or something runs to the united states for example they haven't said agility committed fraud on the united states and it's ministry or something like that you would agree that if that were true there might be something else while i agree one hundred percent with everything your honor just said and i would expand upon it by saying it is undisputed on the pleadings and i think in fairness to mr maule the he's not going to deny that there's been an overpayment enough because it's incoherent by its terms of rainer to say that the united states made an overpayment when they have foreclosed any adjudication of the competing contentious we believe that jodi was underpaid agility was underpaid on this contract that uniform more than forty million dollars there's no reply here on the application well i think that there is judge rein when when it's a shared premise per this court's prior holding cept in the united states arguments that they were for reclaimed underpayment and the united states claim over payment that was the case as it was possible before the armed services board of contract appeals and the united states said that should never be adjudicated either way because the united states was not a princip to the contract it was not a party to the contract and so if there were any disputes about overpayment or underpayment that's a dispute between agility and iraq or between the united states and iraq but but it is a matter of i think law and principle and equity that says if the united states has said they cannot have liability under a contract they also cannot be collected under the contract and otherwise your honor it would give the united states exactly this super contractual rights the judge wheeler in footnote the word clearing does not extend to an overpayment of the that the government is right my only submission to your honor is that it has to be an overpayment according to some law extra nl to the dca and i think it would  natural understanding of a claim or a debt it is it is not that it is being conjured into existence by a bureaucrat it is some preexisting debt for claim that the united states is collecting on and the last  reference and so how do you respond to that ok to take that let me start by taking the plain language just as you do judge told just as you do children as i understand determined to be owed that means that there's been a determination that that money is owed it is not a creation of a debt it is not a manufactured determination it is since that that is something that was determined to be owed and then a court can review for itself to say that it's a determined even if you didn't think that was true from the point pretty language and preexisting on the fact that congress didn't mean to make some earth shattering change in the laws government contracts and all other even if you didn't believe that judge toler you would want to presume that the united states congress act constitutionally with sensitivity to due process to rights of judicial review to rights of a hearing the ability to be dealt with fairly by the united states and that constitutional avoidance principle means that you would want to construe the debt collection unconstitutional and so as i understand the united states position they want to put all their eggs in the basket of the a p a and keep the d c district court is sure you that well a court will look at this it will do it in d c district court going up to the person whose money you would otherwise ok for the offset has to actually oh something to the united states it's not somebody else owing money to the united states and agility owe a dime to the united states and to the iraqi country that is that has to be right that i think that every court that has looked at the debt collection act has has done so with the promise that that analysis that is correct take it that the crucial  bureaucratic sigh i find that a distraction here i'm not getting that is helping your argument i don't mean to the structure trying to but i think that judge wheeler in his analysis below basically said the only thing that a reviewing court is asking is  be in fact eighty million dollars and that would be iraq that would be our acting exactly for the prophecies of this which prior holding in the arguments united states made and i know i'm running out of time your honor let me just say briefly we also have arguments here about the duty of good faith and fair dealing and if nothing else judge rayna even if the government had the statutory right to reach out and withhold these monies into the d d k as han trapped under the circumstances it's denying agility the fair benefit of the bargain struck in the d d k us contract so you could if you wanted to avoid the procedural protections why are those not the circumstance to protect because respectfully they are rendered meaningless and hollow if if the upshot of those procedural protections is when it really goes to court and said this officer determine debt that clearly we did not know it was not owed by us it was ok but we don't think it's owned by anyone according to the available evidence but even if it was owed by anyone it's owed by iraq and it's between iraq and the united states if a court that looks back and says absolutely agility you're right but i'm powerless to do anything about it because the determination has been made that there should be an offset that's the end of your case if that's where the debt collection act leaves us it is in my respectful submission pitney unconstitutional i don't think that's a plausible reading of what the congress intended the u s government has never as as far as we can tell construed the debt collection act that way no court has ever construed the debt collection act that way and even here at this point judge told they are not saying that this would be the end of the case they're saying well and we submit it may be a shell game but we should go to the d c district court and make arguments there as to why the determination was substantively right you know this procedural front so suppose you're right to the procedures weren't followed what benefit you get out of that why can't the government just go in now and follow them in a way that you would find in compliance with the law and and do the exact same bookkeeping subtraction that it's already done to the reasons why the st is if all we get is procedural protections such fronto if that's all we get into the debt collection act we think that every i should be dotted and every t should be crossed because that's the bare minimum that the plain terms of the statute title is too so that's a formalistic argument but the nd argument the more optimistic and substantive argument is even the united states government can be shamed sometimes and if we can go through the documents contemporaneously and demonstrate what i think we might have been able to demonstrate might still be able to demonstrate what you want to persuade them that you taxpayer for these task orders better to question the united states taxpayer this was money that if we follow the appropriations trail was appropriated for the reconstruction of iraq and given to the department of defense for that purpose the as far as we can tell because frankly it's very difficult to read the appropriations lines in the joint appendix it's all numbers and letters all combined together but we've been able to trace a trip certain points to understand that the united states army corps of engineers paid the money that was there appropriated funds and the contracting officer who was an american paid the money to agility on behalf of iraq for the for the contract yes for the iraqi government can give money to foreign government which then enters into a contract but it and the fact that it's a u s plan why should it it's not for example and take this situation so my neighbor needs a new roof right and neighbor replacement too so i enter into a separate contract with a roofer before i pay the roofer on my house i learned from my neighbor that i think i overpaid to them is a problem this scenario that we have here is very common to this situation right now it's not working because in this situation what we had was an appropriations and fun party congress for a certain purpose the reconstruction of iraq it wasn't a gift to iraq i think the situation you're describing is are giving you're here here's what here's an experiment you didn't assert anywhere in your brief as far as i can tell here is why there is a legal obligation running between agility and made a start appropriations or anything else you said the fact that it is u s money is the only thing we're relying correct that's my roof for example and i do not understand how that could be a basis for an offset well if the t s b works the traditional common law collections case just says in it that if the united states over pay of somebody by mistake that is something that can be collected and obligation generated correct regrets that is what that's what offsets are there on a that the money going to be used for this contract or you saying that the monies can be used by your neighbor transforms that money into a rock you money or transforms into your neighbor's money our position is that there was no such transformation occurred that this remains money that was appropriated to the department defense for use in the reconstruction of iraq it was not given to iraq as you know a gift if you will of curious one million dollars spend it on anything you want it was controlled by the army corps engineer in the sense that they were paying it was still united states money why was it why the united states pain money agility contractural services with iraq so when the transition from the coalition provisional authority occurred the defense fund for our rock i believe was running dry your honor the money to do this contract need to come from somewhere and congress determined that it would come from appropriated funds so it every get to do that that question should be answered in the district where it hasn't been briefed below your honor the question of whether or not the debt that mr contracting officer determines in the twelve final demand letters whether it's valid or not that is what  the st statement is the claim for relief in the twenty six dollars team district court case now this complaint in the district court is a little bit old because it predates your prior decision in two thousand and eight on this matter and the sort of a back up complaint at this point but it is part of this complaint is challenging the actual validity of the data that the contract our officer should never have determined that until it was almost eighty one million dollars to the united states for various reasons one million dollars that is actually illegal if you work under the premise that the notes termination of this debt being illegal then the debt collection act by its terms shows that there has been a claim because an appropriate officials determine the money was owed the united states and i claim as an overpayment what jodi should have done is gone to the district court st got a determination that the united states should not have been you know in your opinion should not have been issuing final demand letters on a contract in which we were not they were not privy to and then the debt collection act would not be applicable because it would be no valid determination by an appropriate official but they've done it backwards with the whether the debt is all around the united or to the united states there's been an overpayment right and the dca allows for a claim of an overpayment by the plain terms of the d c i correct your honor yes situation and it's made briefing i'm sure for both parties difficult because of what actually occurred back in two thousand and three with this contract the letting of it the different roles of the different governments in this there was nothing that was an a so therefore the data collection act was never yours that was their argument for a lot of what they did not do below was give the trial court an argument as to why the notifications they did receive were insufficient to meet the amount of the claim and there's two things here that i would like to point out towards the bottom of six hundred and sixty three the nd to last paragraph quoting it if you believe the debt is invalid or the amount is incorrect please contact the undersigned immediately so that's folly to let us know if you think this is wrong the next paragraph is if you are financially unable to pay the full amount of the debt at the present time you may request installment plan agreements so right there is an offer to make it a supplement to argument that we either raise or lower ruled on than this one has ruled on well this was rule yeah it doesn't really matter whether there was think there argument below was that none of the procedures were followed and judge wheeler sees these documents and agreed the procedures were it doesn't really get them that it were right they they were aware of this whole time this off that was occurring they were aware that they disagreed with that they chose specific ways to challenge this st going to the s p c and then going to this court in debt collection act and then holding the district court and reserve agility has not been blindsided by anything the court has  i believe there was an unjust enrichment arguments in the editing room other way around below correct and it was discussed below that they have this eighty one million dollars that does not belong to them but i think it would also opportunity presumably to offer that showing a judge we never had that opportunity in that court or any other  contract to write us outside of the dca but your honor i think that it's it is common ground that there is no such contractual right because the united states was not a party to that contract but you asked the question weren't these united states funds that's how you started with mr mali and i just want to emphasize what you were hearing that this court was hearing from the united states and from mr green all the the last time around because there were questions about whether the united states to its conduct the task orders to innovation is of the p c l contract had assumed party status and the united states said basically that you should not consider these united states monies in terms of the legal characterization because money is fungible and it was paid on behalf of the iraqi government we can see that in the argument transfer it was specifically quoted so  were supposed to be and pay for the reconstruction effort went very specific expenditure and it makes all the difference the judge granted because then in iraq it's an iraqi court work to determine that in fact there had been a quote unquote over payment then that could set up some sort of a dispute it's an essential premise of it no iraqi court is so determined in fact the united states has conceded that they are claiming this money without input from iraq without iraq contending that there was any sort of an  recovering them on behalf of iraq and they have no authorization from iraq to claim there was anything that julie failed to do under the p c o contract or anything that agility was overpaid so they have completely changed their position their premises and the legal submissions are exactly the opposite of what they successfully convince the court of last time around i think that that matters to the correct analysis of whether there's any obligation or any debt that flows from agility to the united states i think it's important to that judge toronto but even if your honour's weren't persuaded of that this is a perignon a taste for judicial estoppel and one of the problems that would result from the holding in favor of the united states is that no one denies judge raina that iraq was the principle to the contract and so that the united states government as a contractor an agent was paying monies to agility but the creek question is what is the correct legal characterization of those moneys judge tronson hypothetical about the roof i submit is exactly right and the correct legal characterization of those monies when they're paid from one homeowner on behalf of the other homeowner is it's the homeowner who has the contract with the roofer who is getting the benefit of those monies and the and the united states has foreign aid all over the world but it does not follow from that because  united states monies are paid out to a foreign government and the foreign government is undertaking a contract using those monies that the united states holds a claim as though it were the contracting party all law to this point every decided case and the restatement on which this court relied establishes that there is no legal claim that the agent has against the contract and counterparty nor does the agent have liability those two things rise or fall together and this court held last time that the united states does not have liability into this contract the last thing i want to address is the notion that we've just done it wrong your honor if we went to the wrong court for the united states to successfully argued up and down all around the country and persuaded this court that when someone files an a p a suit seeking declar relief seeking an injunction if the bottom line of that is that it's implicates money damages that the united states widow particularly in connection with the contracts that suit belongs in the court of federal claims coming up to this court and this court has jealously protected its  diction at the united states is urging it to now have the united states have it the other way and say it's really the dog not detail that should be adjudicated through the d d c and in a p a action totally reverses and up and this court's carefully