on that was my question so so when the back pay his order the court would have jurisdiction but when it isn't we would not and that is just very nature sovereign immunity in the appropriate pay back the way and that's why there's a case so when what kind of argument would you be making in a case before the a f l or a involving back pay that if you lost that argument there would be there would still be the barrier to review in the case where the regulation of the issues such as this one imposes a limitation on the scope of the remedy we would argue before the authority that you must a big limitation a regulation that was violated it's not authorized but they because of the language of the statute is perfectly clear on that but would you but the problem is even if we accept that reading of before the agency policy here is not categorical it says the remedy of assigning the next opportunity only applies if the deprivation of arose from and ministry of air and i backpack and we and how it applies to this policy and we now look at this policy and it said it does not impose any limitation within the meaning of the floor if it's more of an administrative error than the fact now you're saying fights about what does administrative error in that policy mean which has nothing to do with the backpack yes it does rather by part of the before so every construction of the regulation is then going to be a sovereign immunity violation as well if they misconstrue if they don't give enough deference or whatever your regulation that's that's a sovereign immunity violation to us the construction of the form that's the meaning of the very language and before that the lucian posed by the long standing policy of never always having these mistakes whenever the office there is a minority and so it's a fact dispute about whether this was an administrative error or we couldn't find the phone number or this i was being paid that should have been paid well yeah yes ok and then so that's when it's a fine line between application of facts to law and deciding whether something is on this side or that side of the administrative error line this part of the backpack and said it only applies in feb something or phrasing totally wrong as a legal matter interpretation of the back pay act how would that get reviewed that would get me reviewed the way this cour debatable point where they could bring him versus kind is it your position could they just not pay this judgment and raise their statutory construction objections in a unfair labor practice proceeding or is it your fear that that would be would be the same  further obviously department of justice has you know does talk about the explicit waiver which i presume which i presume didn't exist at the time of griffith but that said what i would what i would argue is that to hear that correct but the point being that the the there are several ways that first there's some ways that this these issues could receive review one is that these cases these back the act applies in unfair labor practice context as well and if there is an issue that's a rising over and over again then presumably that would arise in an unfair labor practice case just as it did in social security administration which was a backpack case that arose seventy eight it did it will whole bunch of things all at once in a single title in that act it empowered the authority to decide these cases of power arbitrators to decide these cases impair of the authority to decide these cases it amended the back pay act to give the example someone argued that a federal statute limiting the terms of the operation they had to limit the terms of the collective bargaining agreement and the boys said no that's not how we read that federal statute it doesn't apply in this contacts that would be reviewable i think applies presumably and there are some limited very limited grounds that the federal courts can directly review arbitration case labor arbitration in the federal sector even outside of the work question of whether the an unfair labor practice contacts in the private sector presumably there may be and those grounds are very similar to what the authority reviews of labor arbitrations in the federal sector to the grounds under which the authority review s reviews federal sector labor arbitration and those are extremely limited i don't have off the top of my head whether there would be direct review if there was an inconsistent application i suppose it determines whether  you know the how much you inconsistent application of federal law in a labor arbitration in the private sector what the grounds for review in federal court or again that issue with not joined in specifically in the briefing but we can provide that to you afterwards i think my sense is that the question is whether the finding is drawing is that is about whether the mining draws it does and from the agreement whether the a parties have waived their rights to pursue certain federal remedies outside of the arbitration agreement and so there are probably a myriad of factors ever apply in terms of whether federal courts would have supervisory jurisdiction over a private sector arbitration that said what is clear is that a lot of it turns and of course a lot of it turns on the supreme court's steelworkers trilogy which was very explicit that we have to respect labor arbitration and congress imported that trilogy essentially the principles of that shows you that labor arbitration is a fundamental part of the collective bargaining process into the federal sector that allows the parties to resolve their disputes very quickly and and in our purpose for our purposes get back to the business of government and then i'm so glad can you tell me why the back pay act applies to this policy at all because is it do you consider it to be a mandatory nondiscretionary personnel policy the backpack applies because it's an internal agency regulation  i don't think the agency has contested by a particular finding here in fact the agency is only contesting the definition of administrative areas you're on if you've got to during opposing councils booth presentation i think you three which clearly explicitly forklifts a review of this type of action what's the answer when you have just completely erroneous legal layer and interpret in the backpack that everyone can look at  issue it's an internal overtime policy that simply can't be right isn't that exactly what the force says it says of the political regulation and if the n f l or a tells me this is a regulation and no one disputes that the regulation regulation here instead of said another chance said but payment for a missed over time will be capped at one point two five salary rather than the ordinary back pay amount you're saying that would qualify within the square language else would congress on that and the way we have to protect clause is this that in calculating the recovery in calculating what the employee normally would have earned under b you want that calculation must be consistent with the political something different than what it means to be one we're saying that the way it is use reading in context and before it simply makes clear that the way recovery is calculated under the wind is simply consistent i'd like to pick up and judge when the hypothetical of a totally outrageous back here were does i really don't clearly violates that here and if the authority is right there is no judicial review of that ever do you know if there immunity and pass yanked and provided for no judicial review don't you think congress made a judgment that yeah maybe they'll be some bad words here that we don't really care well i think you will honor the arbitration system whether the question then becomes whether what backpack and it authorizes back pay on these exact same terms and determinations will be made by arbitrators and the f l array with no judicial review