in this relatively old case this case originated with a two thousand and thirteen gender discrimination case and retaliation complaint and it ultimately resolved in two thousand and fifteen equitable remedies were implemented in mid forward workplace and also settle for the seventy thousand dollars in compensatory damages now what is odd here is that after have two questions in looking at the materials before us it appears to me that there's a factual dispute on two points number one whether it is a lynch the army attorney had authority to settle and number two whether in fact a settlement agreement was reached and i say that based upon the materials that you cite in in your brief and in contrast in the tiriel that the government sites in its brief the declaration materials that were submitted in the court of federal claims do we have a factual dispute on those points i i don't think so i mean i think that judge richardson who was the settling judge authority the government has come back after the fact and said that she didn't have authority but i haven't seen any authority to say that she doesn't have authority not to use the overuse the word i thought that was a fact issue about authority yeah i mean when you frame it that way i think it yeah yes there is a a fact issue i don't think it's a i think it's a fact retreat no deal because at that point d that what you can't get out of a deal that a contract you cannot get out of a contract that has been completed and the agreement was complete at that point be the important case the important piece here is that you know one through seven all of the different workplace accommodations that myth fflick request that as part of settlement were already being implemented after the st mediation in july saul again we do have though these declarations in the court of federal claims judge richardson's declaration attorney lynch's declaration and i guess it's mr mr ship s declaration and they will state that no there wasn't a settlement and i knowledge it appears that the you can say that the richardson declaration contradicts some of the deposition testimony but where does that leave us i think it leaves us with out a summary judgment order frankly i think that those things have to be back to that for that to be decided without ruling on the question of the effect of the two regulations the army regulation and the e e o c regulation well yes and and we have to fact issues here which haven't been decided by the court of federal funds one whether she had authority to whether there was an agreement the court of federal disposed of the case on another ground and that is that even if there was an agreement well i think candidly the other shoe is already been decided but i think judge firestone to get another another shot at the case i think that i think there's a certain logical disconnect in the way that it proceeded through her  i don't think you're understanding my question you appealed here challenging judge firestone's ruling that oral agreements are not enforceable you want us to decide that issue or not ye do i thought regulations here we have an army regulation and we have an e e o c regulation and judge firestone rested her decision on both of them you made you spend most of your time in your briefing i think directing your attention to the army regulation you don't think the army could pull back on the deal it had just because it was a regulation but what about the e regulation has this was the tribunals before which the parties were proceeding and isn't that regulation entitle to some consideration well it's interesting you bring that up that but that's what that's what that's what it appears that they are taking from the regulation i don't think the e e o c regulation has any relevance if the if there is an oral contract with the army masoud let me ask you one question the regulation says any settlement reached shall be in writing and signed by both parties and sheila dennis find the claims resolved how do you get around that that's the the e if the judges if judge firestone finds that there isn't a contract it doesn't matter if it's an e s b settlement or any other contract with the united states government an oral contract with united states government in the federal in the federal circuit to get performance on that order if there's a problem in this case for the proposition that the regulations far or rather require a written contract are relying upon the e e o c and armor relations that we cited in our brief and that we're discussing mr bunce or as argument ok but as i read those regulations that the regulation is just providing the printed word as to how these cases ought to be run and how settlement agreements should be entered into it doesn't say that oral agreements are on the course of and there are plenty of cases both from the supreme court and our court saying that housekeeping rules time limits and other things like that may be imposed may be be satisfied to create a contract here the other is excess light upon the absence of the other elements of a contract whether or not there's been a meeting of the minds whether or not there's been actual authority and the lack of a writing here in addition to failing to satisfy that extra element through the regulations also suggests those other elements for contract formation have not been met here well those other elements are before us right now the only question is whether the regulation bars iran a kind of question and for stability it's more a question of a distance without a written agreement there is no agreement here under the regulations both the c and the army regulations the army regulations provide that the terms of settlement in  awareness of these regulations during the settlement discussions on thinking here whether there's anything in the record about mr elliott representing  cynic's that so you're saying so you're saying this supports the proposition that the parties that were aware that they wouldn't have an agreement until there was a signed document that is correct your honor no let me ask you one other question if i could please you heard our discussion with mr months sure and what is your view as to the relevance of the factual dispute here as  two whether there was a settlement agreement at all regardless of authority should we decide this regulation issue that is presented on appeal and the judge die has been discussing or given that we have this factual issue should we not decide that issue and send it back for these fact questions to be decided to say st of all the issue about the your honor the the order was not one based on summary judgment i agree that the court did not make that actually a factual determination as to actual farty but the determination that the court made and at the pleading stage it was not once the evidence had come in which contemporaneously and if you put on the other side of the material other side of the table the declaration of the tiriel that was prepared for the court of federal claims the richardson declaration the lynch declaration and the and the shipley declaration i i really think there's a fact issue when you put those things together as to whether there was an agreement leaving authority aside come to any conclusion other than that based on these paper materials there's a fact issue on whether there was a settlement your honor the good news for the court is that the court and you not necessarily respect issue mr bullock  was speaking more directly to the waiver of the writing itself miss bullock did not raise that argument before the trial court until our motion for reconsideration and therefore she forfeited her that issue before the trial court and also did not preserve that issue for appellate review we cited several cases for that but the bluebonnets and caldwell cases from the federal circuit stylish those propositions moreover the court or federal claims expressly held the ms bullock had forfeited that regulations argument question about yes please yes mr hough the waiver issue i think what you were referring to was the statement in the reconsideration decision that says in her original lotion reply in this bullet failed to earlier and cannot serve as a basis for reconsideration now so basically though you're saying to us we should even though the court of federal claims rules on the matter of you know enforceability of an oral  settlement agreement we can't and that was the basis for the decision we can't rule we can't decide that because it was forfeited right here on our believe it because it's for fiction i believe of the discretionary with this court but certainly the and attention to this first of all with regard to the waiver issue ironically enough judge fire him let in her order of july th two thousand firestone i didn't see the need to respond to it perhaps i should have not even perhaps obviously i should have given what happened but i did raise it on my motion d for reconsideration in other words that means that that issue was front and center for a period of time in this case and the doctrine of waiver is therefore overly formulaic hypertechnical and exactly the type you know you didn't address it so it's waived i think that's hyper technical for me over there including former way before substance as far as some of the other points that were raised if i can one of the things that th that the attorney for the government said was that miss miss bullock made an affidavit without any personal knowledge she was working at the government she was talking exactly about what she knew when she said that these particular pieces thousand dollars there for settling the case please please continue your side thank you very much i think one of the one of the things that rings true clear throughout all the cases that you look at is that a regulation of the federal government agency cannot impair d a fundamental right of an individual in a contract with the government that is when and that is every case that is looked at this   at this issue back as far as you can look if you enter into a contract with the government in the absence of a that you that says that that agreement has to be in writing  that oral agreement isn't forcible and the fact that the federal government has a housekeeping regulation that might affect their internal process does not impair the right of the individual who entered into the contract with the government to receive the the the benefit of that contract and that is exactly what happened here the federal government would agree you would agree mr monsoor that there is the qualification in the cases that says the contract is not the oral agreement is not enforceable if the record shows that the parties did not intended to be enforceable and fillets submitted to writing and that was what we said into referring to my boob i think that that's absolutely true and what you have to look at in that respect other is the fact that the federal government was implementing the equitable remedy  made the final piece complete by offering the seventy thousand dollars to resolve the compensatory issue if it had to be in writing or all one through seven of those would have been reduced to writing and no witness they weren't the federal government with performing on an oral contract partially before the seventy thousand dollar