well thank you your honor this case presents the question of whether a district court can order equitable raef against a federal agency because a lot of with the move and i thought i was speaking to out this case we have two appeals today one on the denial of intervention to my client below and one from the merits of the judgment and i would like to turn first to the issues that go to the merits of the judgment in a bow and there are three parts to my argument the first is that this court's prior decision in the kimberley case didn't resolve the issues before the court on this appeal did not dictate the entry of judgment second then  ordinary principles of contract interpretation and then third even if the contract between the farmer so ministration and kimberly expressly waive the congressional power to pass the what the statute w appropriate and the only damage the only remedy available to kimberly is money damages let me ask you this what after that or opinion kimberly one how do you understood what was the district court's man and how do you understand the district court's mandate when it when it was returned your honor kimberly one raised that you said in your opening remarks that after that we mandan kimberly one that didn't what did the district court have to discern in order to enter a judgment in favor of kimberly let me answer that in two ways first the government government moved to dismiss very early in the case and raised only two defens first that sovereign immunity wasn't waived and second that the on the stake ability doctrine applied and barred kimberly's claims and those were the only issues in front of the first panel of the the first panel ruled against the government on both of those issues but then remanded to the district court to entertain the case with any other there's all this is going to look at our opinion and it's going to follow what we've set now why why why did the district court you're telling us is that the district court misunderstood our holding and can't really want and i want to know in what way or how the district court ruled that a weapon does not apply and that is a misapprehension of what the first panel said the ruling of the first panel was that a weapon was not a sovereign act within the meaning i had not thought about that that that and that distinction i don't i don't think that distinction is material to the argument we're making what we're suggesting is that the government cannot raise a weapon it cannot raise under stake ability d in this case doesn't provide kimberly with a relief to kimberly seeking and that's our second argument and i would rely on footnote twenty four of winstar says in part if an alleged turn could doctrine that the government cannot evade contractual by the only categorically by relying on a wet but we know from franconia associates that the government has to pay money damages for breaching the contracts repudiated the contract that it had when it passed a letter and we we know that that the government is responsible for money damages that does not mean that the contract between kimberley and farmer so ministration in one thousand and eighty one in title kimberley to be exempted from the subsequent act of congress all that it means is that is that the government breached its contract with company but that only begs the question of what the remedy is and kim and winstar instructs that you apply normal standards of contractual interpretation to the contracted issue here from your perspective the government the government reaches its contract with kimberley kimberley can get damages program with that but the project nonetheless still must remain developers then the cure for that vice is to spread those costs to taxpayers through an award of damages so they can probably doesn't have to bear the costs of the section five fifteen program itself but what kimberly is seeking to do here extraordinary proposition and i think that there is confusion in gendered in a lot of the case law because people usually suing the government for money damages so i want to get back to something more basic you next in this is one of your three points interest the kimberly has in the property has by virtue of the judgment entered by the just required all of the government could do at that point was drop its appeal if you reverse the judgment entered by the district court and remand to the district court presumably the government will then appear in the district court and it will either say whole transaction be undone i think this court has jurisdiction over over the appeal from the judgment is the district court's judgment that harms mr and if the government if you reverse and alternatively the government may say part of our deal with kimberly is that we wouldn't want to get this further at all and in that case we have a cause of action against the government to try to enforce the terms of the litho all of this happened after the after the appeals were taken and so all that we know about the settlement is from what camberley has filed in this court in the first instance we've had no discovery about this we don't know anything more about the someone other went to court does and as an advocate it makes me very uncomfortable to be to be arguing the the wrong facts of of the state or by this my recollection and i and i i wish i were more certain about this my recollection is that least some of the steps that you're referring to took place after the stay order but in any event there's no doubt in my mind that the district court would have the jurisdiction to unpack the studio one and return the situation to the the prior state if the judgment is reversed kempley doesn't have an interest in the property by virtue of a settlement has an interest in the property by virtue of the  contract at all and all to say the contract in the contract protects kimberly in the event that future regulations are inconsistent with the expressed terms of the statute or passed by the parmesan ministration it does not say the same thing about congressional  filed a notice of appeal from the judgment your honor we relied on the on the seven circuits position since right we when when the government appealed we looked at the long concluded the we could not appeal because we were not a party but with the government having an appeal for relief to intervene or in situations like this but it doesn't reach the question because they decided that the motion for intervene and that in that context was was properly decided in the district court in about two minutes i would like to reserve it if i could your honor you please the court robert bakes for the respondent kimberly three years ago this court decided the very issue that the appellate in this action is trying to raise again the court determined aleppo was not a sovereign act and therefore it could not modify kimberly's contract with with the government and that contract specifically provided that kimberly could prepay its loan at any time and exit the five fifteen program and i'm referring to the loan agreement which is the excerpts of record tab one paragraph six page nineteen which says specific lee so long as the loan obligations remain unsatisfied it had the absolute right to prepay that and exit the program that is your decision in kimberley one of the united states supreme court followed your decision to follow the analysis of your kimberly one  twenty eight u s c twenty four ten which says that if we have paid off our contract we can quiet our title from the government so you can get equitable relief congress has authorized equitable relief and that was confirmed by the united states supreme court in the union oil company where they granted equitable relief and lot of them to rescind the contract and get their deposit back and so when the supreme court decided franconia it use the same the injured party can either sue then or can sue when they actually tender the balance due on the contract and the government refuses to take it but they use the same analysis that it's not a sovereign act when the government and acts legislation or regulations which specifically point at a group a contract or a group of contracts and say we're going to modify an otherwise a sat judge o'connor said in the oral argument she said why would anyone contract with the government if the government i'll have to do is pass a statute and they can modify the contract and i think it's justice scalia said any contract which permitted that would be illusory at best because the government could modify it at any time you don't have a contract and which was back in one nine hundred twenty seven in which they tried to modify the veterans insurance contracts newspaper said you can't focus on these specific contracts now i public purpose and this court said specifically in kimberly one that and the supreme court said in franconia when it was interpreting these precisely same documents that this was not a public or general purpose it was as you sa a narrowly focused attitude trying to relieve the government of its obligations under as a distinct group of contracts and you said that is not a sovereign act and the government cannot modify these contracts and so we took could have gotten around that i'm just from i can't think of any i've you pose the question i've often thought what would have happened if they were they petitioned the council for these go petition this court court in camberley now had this case gone back to the district court and had the district court granted them permission to intervene and had ruled the way they asked this court to rule which is just contrary to kimberly this court would have been rightfully upset because the district court did not follow your email and order which sure you read part of it and if you comment didn't the last one is to prevent enforcement of private contracts between third parties and trustees would give the government as contractor powers and private contracting parties lack and then you say quoting from the the federal circuit yankee atomic electric such a result cannot be counted because the government in his private contracting capacity cannot exercise sovereign power for the purpose of altering modifying obstructing or violating the particular contracts into which it had entered with private parties they can't do that now your decision  kimberley one has become the standard in the united states the federal circuit is now followed it just in the last month the federal court of claims in a damage action followed and quoted extensively from your kimberl decision holding that that little was not a sovereign act and therefore it can't modify the the contract with the property owners and therefore they have a  the federal court of claims for damages but in this case we have a cause of action for quite a title because congress has specifically granted authority of the to the district courts to quiet title if the government has a l judgment in favor of kimberly at the same time he denied their motion to intervene they appealed from their motion to the denial of the motion to intervene within ten days i think on the twenty third of december but they never appealed from that quiet title judgment for one hundred fifty five days now when the government's a party all parties have sixty days to appeal and this court has held regularly that the that the jurisdiction in the case or controversy which gets back to just the same as an argument that the issue is moot you haven't addressed the merits of the motion to intervene what about the appeal from  they can address that and there is a case and someone one of the panelists said well why don't you just through the government will they they have in fact done that when we have so many of the record with the there's a class action pending  oregon gold ammar versus venom one which is against the secretary of agriculture in which they are lead again with who they should be litigating their problems with the government there their argument is really with the solicitor general i don't i don't know i wouldn't think so and raise them well i haven't proceeded that far and we the one of the partners in this kimberley was also sued over there so we are in that action and have been meeting with them for judge levy just last thursday to try and see if we can't resolve those cases over there but what these are not against want to do they're not it's not that this tenet is jeopardy in jeopardy in any way and i really object to counsel's cocky that's what he said and of course the record in this action shows that immediately after this court issued its opinion kimberly entered into a contract to sell this kimberley property to a nonprofit corporation which is in its business is to preserve these properties in obtaining subsidized housing and it does have a subsidized housing contract with had the department of health and urban development section eight housing and so that's different by fifteen different five fifteen but this never has had five fifteen subsidy on it it was always even though it was financed by rural housing it was always subsidised by one so that nothing has changed there  no jeopardy to this tenant that has all this tenant is a stocking horse in order for them to try and get the issue that you raised and kember the one back up here to try and either get you a different panel to reverse kember they wan not follow the law of the case and then try and get the united states supreme court to take surgery and that's what this case is really all about the question is that the sole issue is if there is jurisdiction here that the trial court his discretion in letting them intervene and so for that to look through you have a four part test you first it was a timely and that stage of the proceedings which they sought to intervene was after this court had established the law of the case now they want to go back intervene and ask the district district court to reverse or not follow your decision and then take an appeal back up here and ask this court a different panel to decide kimberl differently than it did before and failing that they will then want to try and petition the united states supreme court for sorcery something that the solicitor general did not do because in my opinion he must have felt that kimberly was the right decision and all the other courts that since then i've been following kimberly and somebody you're either going to be proud of because you see they're trying to set aside the other courts in particular the co thought the united states government through legislation focused on contracts and modify a contract and say we're not going to live up to this contract we're going to change the terms of it if they could do that this was a fifty year loan why couldn't they change therefore why wouldn't i wouldn't money be sufficient adequate remedy and real property life you're talking common law damages is never adequate when it comes to title real property that's basic common law but the other thing is is the congress has specifically given the district court's authority to quiet title and equitable remedy and that's the most recent expression of congressional will if it's later than the original damages clase and the last reenactment of the techer act in the same act of congress included both the tucker damages provision and the quiet title remedy so we're not that's the problem it's this what's kind of a gigantic bait and switch if you want to ask that we got into this program because there were special tax advantages up until nine hundred eighty six when congress took away the tax advantages and then and this is spelled out in the most so as the industry device to describe it was i judge gannett bait and switch and so that's why the most people file damage cases in the court of claims we filed we tendered the balance due and file quite a title and that house has become the leading case kimberly one has become the leading case in the industry you can now go either way or both ways because you are damaged can really hasn't been getting any return on a seven thousand net a negligible return on a seven hundred thousand dollar investment for seven years at a ten percent return average that's four hundred twenty thousand dollars the yes seven years that's that's a half a million and at that time under that settlement agreement the judgment quite paddle judgment had been entered in december of two thousand and two the government took a protective notice of appeal we had a very substantial attorney's fees claim convene the property shortly after the first part of march and we were obligated on the settlement agreement to file the satisfaction judgment which we did now it's been intimated here that we violated some state order by this court those set the satisfaction of judgment after the government reconvene the property so we're now at the position where it's been seven years after we tendered the money we've not gotten any return on this property and we're here live a gating again the precise same issue which this court decided in kimberley one and which is now the accepted analysis of these contracts in all the courts that have address happened before the other half of the four and there was no jeopardy to these people because what we were doing was preserving this property for these tenants and not jeopardizing the tenants and the court denied that the motions judge denied i'll try to cover a lot of ground quickly judged except that the government agreed in the settlement agreement to reconvene the property and respectfully that's just not the case once the district court entered judgment the government no longer had an interest in the property property to a third party it's not clear to me that it can really transfer to a third party that will have any adequate remedy under the a p a ceiling suing the government so that's our concern that's why we want to reverse the judgment and continue but again in this action  on the question of what the first decision of this court decided judge based said that it held that it's not a sovereign act when the government repeats the contract that is true only within the meaning of the sovereign act doctrine under winstar it doesn't mean that it's not still act an act of congress and that's exactly the premise that franconia rests on franconia doesn't say that or what but wasn't effective and said it was affective and refuted a contract and award a contract damages that's exactly what we say should happen here no doubt the government's contract with kimberley has been breached and no doubt judge banks client should recover damages for the lost income that he describes at least they won't get any opposition from isto that does not mean that they can quiet title when an express statute ordered ordered r h s not to accept the tender pre payment and the last thing i'll say about  your honor kimberly knew when it contracted with the government in the early eighty's that this was a this was a contract relating to real property and kimberly did not bargain for an exemption from future acts of congress if they'd wanted the release that they were seeking for now they could have bargained for it then what they got according to the ordinary contract principles described in one star both both just a sewer and souter and justice scalia quoting judge holmes what they got was what's insurance from the government that if the doctrine is an attempt to figure out what the contract between the parties meant the earlier panel decision never interpreted the contract here that's what we're at we have we would ask the district court to do and that's what we asked this court to do the contract between