that the court of federal claims could have deny them their day in court is to adopt inflexible rules of law that we believe are inconsistent with the rules of this court and with the supreme court and on the basis of those per se rules made it impossible to consider the abundant factual record which we presented on summary judgment and which was available to the court there are a couple of per se rules that we want to point out that we think the court erred in adopting the st was that it made a determination that the takings in this case were permanent rather than temporary in nature the nd rule and the consequence of falling for the st was that the only way to prove a permanent taking was to consider the change in market value that resulted from the taking in the rd person a rule that we believe it was and an error was to determine that the only way you assume that a permanent taking place or if you only way to prove that a permanent taking occurred is by introducing opens a fair market value is with the cases on the contrary very strongly supports our our approach because in pens park the court said the proper method persists in damages suffered by place and similar situation is to start with the damages they would have been assessed for a permanent taking and then to reduce the amount  some kind of net present value in myself because i'm looking for that therefore we must back out equity from the denominator and you know obviously that results in shrinking the denominator in a necessary to do that why can't you just figure out the amount of lost rental income due to this change in law and then divide that by the amount of income you would have had if the change in law had never happened think that the doctor would describe your meticulous and i believe what he was trying to do is to understand what was the net amount that's the net present value is what his analysis looks on and the formulas that were set forth in his  in his report indicate that to get that net value to be able to have two numbers if you can really compare that's why he did like to be seen for the moment we don't understand what he's talking about and you're here serving as his translator and you've got forty seconds to tell us what is actually going on there and i think that is essentially your honor we being what he is doing is trying to resolve the number two numbers that can be compared i have a very specific question for you do you mind looking at page  formula for each of those things you've got less t p eat my question to you and you might not know the answer but my question is when it says less t p either which is the amount of equity that the person has or the owner has put into the property is it the same for is it the same number is t p for the p v market conversion the same number as p v for actual outcome i think they looking at the actual net outcomes for both the with the restriction and the without restriction calculations and that just gives you a net number and then you look at the comparison becomes a comparison more inflated economic impact percentage so i get that there's a motive to do it what's the justification for the justification your honor and i believe dr wade was no doctor was not attempting to in a way manipulate the data law of this circuit and of the supreme court in finding that the evidence proffered by the plaintiffs was not sufficient to show economic injury and regarding to casa there as well the court correctly determine on free payment without approval from had and there was no reasonable expectation for a buyer in that and that circumstance to expect that he would be able to sell the property and convert to market rate housing  done based on the total value of the property and it has to be done ex ante you have to use the information that will be available you're losing me a little bit i can't see any good ten so there's two different ways a writer economic property value and what it would say the rental income would have been received without the regulations to track down the rental income that would have been received with the regulation and on your denominator you would earned under the program is divided by the amount of rental income that would have been earned under the market why wouldn't that be the way to figure out the degree of basis standing in the shoes of what a reasonable buyer seller would have known at the time of the taking and so again you know there's done properly a change in value assessment and a change in income the problem becomes when you're not using data that was known at the time of the taking and the supreme court in cases like olson has been clear that that just compensation should involve all of the factors that give val the property but it doesn't exceed the market value fairly determined can you can use actual future of data in order just speculate as to what somebody knew at the time right because if you're any are you aware of any cases where work has actually gone beyond that and considered actual data coast needed the taking order to calculate the value i mean violate this person again it's not a per se rule but the only case that i am aware of and which the court the supreme court has talked about value is does have a binding a market value to determine on an on an eccentric basis we're not saying that there could be other ways to bring the cent but at the end of the day the it is the plaintiffs burden to present evidence that correct well i think that the that that is not correct in the sense that it would allow a plaintiff to clear the hurdle of summary judgment without showing how the how the how the taking of the alleged taking affected the value of the property and well you can get it at a price i was just asking generally is if you're free in this  very we recognize that the squirt discussed two ways in which this could be evaluated and i can however we reinforce the right way to go  yes again however when those calculations are done correctly there will be two sides of the same coin and they shouldn't result and wildly different numbers which is what point is that's what has done here and going back to that point and but no thirteen is going fire market value of the property for three of the properties so for example as she used the gardens as an example the the total appraised value  property was  that means that maybe you know they'll try to show that it's a different mountain so that ratio you're talking about be different i mean we're not supposed to sit here and say oh yeah that's a good enough reason are manically assume that d very market value to sell option was given to plaintiff at the highest and best use of the property with the prepayment right and tap so assuming that an owner would be able to immediately convert to market rate housing or to develop the property  condominiums there was no restriction on the on the fair market value under under the liberal sale option and it was determined by at least two independent appraisers one of which was assessed was selected by the property owners here there's no evidence presented by playing to us and they won't be able to point to any that shows that those calculations were incorrect and if they had put forward evidence that showed that the fair market values that were calculated under the look herself process  done into usable data for the court to determine whether or not there's been an economic harm here is that true even for you know i think it might be true for one of his methods but for the mapping and page calculations they are there benchmarks too to the transfer preservation equity but we also the court had questions for plaintiffs about why these cash flows of used in the method used by dark to read page three thousand eight hundred and eleven has equity only as the denominator is that correct no however and it is not the method that the court contemplated which this the c v s st of all the court when they were looking at using income and lost income it wasn't there was no taking out of the of the transfer preservation but again under holdings of this court and sciatica and other decisions and the supreme court the last that a plaintiff suffers as of an alleged taking cannot exceed the market value fairly determined and mr dr short your honor the point of must present evidence that permits the court to prepare to compare the value of the property on the date of the alleged taking with and without the restriction and while different evidence might be used  i to make your today listening to the government's argument it appears the government's now is acknowledging that in fact if this were a permanent taking that there is in fact more than one way to calculate economic loss value was not the only possible alternative and something else was it was allowed if that is the case then we really do need to send this case back to the court of appeal claims because i was not the judge we could which is of the only way to do this was fair market value and then centrally she threw out an appraisal comparable properties other factors that may influence the decision of what a property is worth they have absolutely nothing to do with the liquor mechanism and we did in fact dispute those matters  the sinclair refining case makes it very clear that when we are now thirty years almost from the effective date of the taking it's there's a book of wisdom there's knowledge that we have gate and to contend that we all have their day in court they present evidence of legal arguments to support their claims that are completely consistent with the controlling presence of this court and more than sufficient to survive summary judgment we believe the court of federal claims in many respects acted improperly and we presented