written agreement which supplanted replaced and extinguished an earlier settlement agreement and release in so far as a claim is concerned and then after performing at the terms of that subsequent agreement for many months it decided to renege and the trial court heard in this case by allowing the i r s to renege on that agreement i'm sorry really that's a whole new deal plan or replaced yes your honor i think one of the agreement made in writing that was filed in the court and then later the parties agreed to adopt and incorporate that agreement into the court's pretrial order so it was and it was a judicial agreement made long going to be treated as a contract and if it's a subset of the being sanctioned by the court yes and in this case is formally negotiated it's reduced to writing agreed to by the parties submitted to the court in the later agreed to by the parties to be incorporated in the court order and then later the course of performance of that agreement is for many months the parties perform the terms of the agreement they honor the plaintiff's lawyer right that we engage in the rolling production system where they're given  to comply with something that they they haven't released that said they don't have to so that's the other side of it and now i bet you're going to say that that is exactly what happened we went through really if you start from the beginning more than two years during the administrative process my gun makes a request they they had they go through the administrative process they never once say oh you can't do this there's a release they honor his right then in a lawsuit what did they do they're in default for answer i write them to reminder a letter saying hey you haven't filed an answer in this case and by failure to file an answer under the civil rules they waive the affirmative defense and i'm mindful of the fact that we lease in accordance a to sanction reformative defenses there's a waiver that you waive by in the absence of filing in the answer and you know the argument that babe raised it in their summary judgment motion right if you say that nevertheless it amounts might actually filed a motion for a default judgment that didn't get granted in this case but i'm mindful of case law that says there is limited circumstances where a party can raise an affirmative defense for the first time in a motion for summary judgment but if you look at the cases they say two things have to be true one is there can't be surprise two is there can't be prejudice now in this case the surprise is self evident after i go two years yes you have a right yes we're given you're right yes we're searching for the record yes we're going to produce all the nonexempt you go through that two years including many months of the litigation and then they go oh ups i'm going to renegotiate that comes as of self evident surprise and when you look at the prejudice the case law says when you drag a litigant through unnecessary litigation and litigation expense that is prejudiced so in my case why if you're going to if you're going to drag me through if you're not if you're going to not unnecessarily drag me through all this and unnecessary litigation why you just say there's a release and if you have the whoops after thought later after you've waved it six ways from sunday after you've memorialized the written agreement after the parties have continuous conspicuous and constant that evidence the contemplation and intent of the parties if you do want to get let's forget my subsequent agreement let's parse the words of the release the court is supposed to look at the conduct of the parties when it's trying to turman the accomplish and the parties and the intent of the parties we again i started out with two years of conduct where the party showed nobody contemplated than a foil that was on a release and we will live with its terms if you look at the terms of this release or when it doesn't release a fair claim look at the trial court get the trial court relies on the fire case which is an unreported not for publication decision in which the release said in black and white i'm releasing a for your client that's not my case i got a general release and it's not an unlimited just released all the way not my release says it it's limited to the release true that the the issue of of the waiver could have been raised it could have been raised at trial didn't have to come before that my by the i r s i'm raising the argument that they waive defense no i'm still going back to fundamentals was it wait your stance is it was yes and it was surprising and prejudice the the service has briefing that suggests that you could raise it even if it could be the first time at trial only if there is no surprise and no prejudice and as i've said earlier i know that yeah ok got you but you don't have to read only a job i don't even think that's true because the limit on releases of unapproved claims to me is public policy so when we look at the public policy federal courts many times look to state law for public policy public policy of the state of ohio if you consider the site as of this the settlement agreement in ohio is against the release fine i'm sorry find it we signed it to settle a civil forfeiture case and get all my clients money back after nine years of abuse your hon or where my client was never charged with so much as a parking ticket violation they decided to give him all his stuff back but they took all his stuff in june of two thousand and three and kept it for nine years with absolutely no grounds and and that what the is targets it targets two things well i mean it's thirty seven pages and it goes back to ninety three we know this what does your client seek out of that records from afghani that wonder what to what  end he wants to know how could this happen to an american citizen in this day and age it's as simple as that your honor and when i look at the public policy pronounced in the president's directive in the attorney general's directive to all the live through it so he knows how it could happen know you don't know how it happens when the iris comes to your house and takes everything you've ever worked for keeps it for nine years and never gets you to a court you they never indict you never charge you and give you a chance to vindicate yourself in a court and then when they throw in the towel at the end oh my bad here take your stuff back you walk away as american citizen wondering how did my government do that to me and the prevailing policy under for you when you look at the case law you look at the president's memory and you look at the attorney general's directive to all the agencies is to lift the veil of secrecy so that an american citizen can quote know what his government is doing in this case the but i think in this case the trial court did actually a lot of things that were erroneous better fact i've got to me seven ways a they disregarded a subsequent formal negotiated agreement by sophisticated parties represented by competent counsel that supplanted the the the terms of the settlement agreement in so far as fully is concerned anyhow number two when interpreted in the release they they disregarded the conduct of the parties that unequivocally showed that they never contemplated release a before  claim number three he interpreted the scope of the release to bar on a crude claims that were not for upon arising out of the civil forfeiture this was for records it was upon the freedom of information  arose out of the denial as the case law it's tough to take that it's tough for us to swallow that view that arising out of i mean that's tough to argue we when you look at it nothing would happen i know that's pretty out of the negligence in the injury arise out of the wrong the wrong in this case is the denial of a claim so for your request that's when the cause of action a cruise under fire so this all rises out of a wrongful denial and i see you in my time's up most requests thank you good morning your honor scriptural finger for the internal revenue service i would first address the language of the release if the court has any questions we believe as the district court held that the language of the release was clear u nequivocal and obviously applies to the claim in this case now if there are questions i'll move on to the arguments made by opposing counsel about why the release is an effect of tell me brief but maybe you can explain yes your honor it's my understanding this is the argument that was made specifically in his reply brief and which he refers to as innovation argument now i'd note that it was not raised below before the district court and it was not raised in his opening brief so it's raised excuse me it's waived but what he's referring to was the twenty six agreement entered into between the parties below regarding discovery and review of the road anybody realized there was a release that fair to say yes yes and i would argue that that's i don't know what a judicial agreement is although opposing counsel has described it he cites cases involving no variation but was approved by court that was approved by the by district court at the time was that not yes but i don't know i know it was agreed to but it was in the it was in the face of some  dispute on whether there was compliance with with a discovery order if there was an order for it to produce records directs wasn't following through to be to make it quick and dirty wasn't following through went to court on a complaint about that and there was an agreement entered that said we'll start doing it on a rolling basis yes but i to specifically look at the if there can be no i'm not talking about that i'm talking about the twenty six that was and yes it's her court and i'm addressing that in the sense that it was an agreement between the internal revenue service and mr rogers if that's considered it can't be considered an of the original settlement agreement which can taint the release because the internal revenue service wasn't a signatory to that original settlement and release it was the they were two arguments the one is  stop look you all agreed to this and a judge blessed it the second the notation i wasn't questioning you about that if i could finish on the no variation it may play into your argument your honor your questions it is not a waiver or in a stoppable because it's a procedural agreement among the parties and the opposing counsel cited no patient cases but i don't believe cited any cases saying that a twenty six f agreement constitutes an ovation or a waiver further i believe the court should not interpret it as such because it would violate the rules enabling act and the rules enabling act basically says that the rules of civil procedure can undermine or affect subst substantive rights of the parties and the twenty six f agreement if interpreted that way would undermine the government's substantive right to contract we're not if you waved to your  was no timely objection in fact you gave your closing counsel reason to believe that you would comply with the request by entering into this rolling agreement with these waiver that the release was raised too late the district court got it absolutely correct he said that he had discretion under rule fifteen to permit an amendment or a late raising of the affirmative defense of release that's an although it may not be explicit if you look at the original for your request to the internal revenue service that is handled by for your employees or for your unit in not in the us attorney office when it comes to the internal revenue service they are distance from what happened in the western district of pennsylvania their job is to look at a four year request respond to it and if you look at the new here would counsel involved in all of this  response and if you look at the documents attached to the complaint they had they estimated there were about five hundred thousand documents they needed to look at and they're also under tight pressure c s for several extensions to respond to the four requests it was clear they were focused on responding to the request when it gets to active litigation in the district court there was some turnover among the attorneys on the case the attorney the attorneys also were coming out of washington d c they were not coming out of the u s attorney's office in the western district of pennsylvania so the government did finally focus on the issue of the release and when they did they timely brought it to the attention of the court it could not have been a timely when timely upon discovery is yes timely pond discovery further there's no surprise in the sense that mr rogers was a signatory to the really so when he heard about the release that was in a surprise term but not a surprise in the legal sense in that he had time to respond ample time to respond to the summary judgment motion and rebut the government's contention that the release applied he further wasn't prejudice in the sense that as we argued in our brief under the rolling production he got documents that he would not have been entitled to and further he even if he had been denied documents at the initiation of the case on the basis of the release based on what's happened here today he would have still gone into district court and challenge the applicability of the release so he would still have been in federal court one way or the other so there's been no prejudice litigation expense and it also was not raised in the opening brief it was not until the reply brief that that argument was specifically made i would also note that with regard to the a stop ok the a stop will prompt the government can't be a stop on the same basis as litigants that you have to show affirmative misconduct and i think although your honor is not pleased with the i r s in the government's performance in this case case there sir only no indication of any affirmative misconduct as judge cook termed it there was sort of the ups which is a mistake inadvertence negligence but there's certainly no affirmative misconduct here that would support a stopping the government from raising the release i'd also note that under both pennsylvania and ohio law specifically the benish case that accrued or not you under crew claims can be released that pennsylvania law states that if contracting parties are sophisticated represented by counsel you should follow and apply the unambiguous terms of the release and here as the court is noted is a very broad extremely broad general release which would cover a foil claim there's no public policy could be considered to be waived under general release in a civil case you see the home counsel's argument with respect to the terms of the release and four and he focuses on fo for the foyer request this is the argument he just posed what are the words that the repeat the words of the release are quite broad he is saying arising out of does not save the i r s because it's not it's for or and it in a rising out of is the way i would look at it doesn't overcome the specificity the way he counsel wants to read it so would you respond to that and i think that he's parsing the circumstances of this case much too narrowly as we said in your brief if there had not been a civil forfeiture case there would not have been a four year request he's clearly requesting documents that relate to connect with  rise out of the civil forfeiture cases that's exactly what he's looking for so i don't see how aside from his narrow parsing of the circumstances of the case he can escape that the  trial court i didn't call it a no variation in the briefing at contra to the motion for summary judgment we talk about waiver and we talk about it in several respects waiver by conduct was one thing we focused on starting with the administrative process all the way to the end waiving to was waiver by the subsequent agreement memorialized in the rule twenty six f agreement and memorialized in the greek order order then the third way raising this bike by claiming ignorance of your honor is correct that you know the government's going to say i don't know the right hand doesn't know what the left hands doing so they're not charged with knowledge if you look in their brief they snarkily say oh roger's have on negligence or failing to know it has to be you have to show affirmative misconduct on the part of the government yeah and i think the a stop is my weakest of the three waiver related arguments are on or so and i argue my brief there is intentional misconduct here but i would put it that way down on my list of things that that i think carry the day in this case we will do that when i get back and when i get back to waiver though how many different ways  government waive in this case conduct before the lawsuit during your ministry conduct after by making the subsequent agreement conduct by living in the course of performance of the subsequent agreement for many months  procedurally by failure to file an answer that were is the proper place to raise the affirmative defense and then her preferred but not required but but but only excused if there is no  surprise and be prejudiced and we set forth in our brief the three stories that i've to surprise i guess i would it's true that your your client absolutely knew about that really oh yeah sure it's how he got his money back but but  we absolutely knew that release had nothing to do with the subsequent on accrued on contemplated for a claim and i do want to hit this evidence that you filed district court to back up your claim prejudice and negotiation of the agreements the living through one hundred thousand pages of spread sheets during this rolling production system where the other was your affidavit where's your declaration is that in the summary judgment the opposition to we offer you no opposition summary