first of january order on voluntary remained back to the agency to do an impossible task and that impossible task was to review a decision on a  not so when you say impossible you mean that the government says it's impossible not that you agree that it's impossible i believe since the solicitation was closed the in other words decision that to go that the court can't order  it might be able to do that but it would take i mean it would take such an enormous step back it's almost like the state you can't step in the same river twice what about confusion if you would prevail before us from go back to the district court and prevail there what do you get i thought and what you got was we doing back to the department of energy we do we get we get three things first what pulled on lawful and set aside the for the well number one that's our main ok again on that but the second thing is we can apply without a fee your honor is right for the finger on that we could also conceptual problem here is that let's say we had no court order it was that we had no we had no court determinations at all we could always go back and whatever solicitations are open now apply for them we're original decision for my client's interest we need it held unlawful and set aside and then we need a new low impact application without the fee and coming again why but we would makes you think that  because the government closed the original program why you can't get back into the original program user statutory this amount for this program this amount for this program because there are clearly still having loans at least according to the papers in front of us yes your honor according to the government it's closed so you can't reapply under that group and we would wait the problem here in this is that we would also waive that administrative record is our fear our fear is that we would we would we would have we have the original administrative record which we've never seen all right with whoever the original decision makers were and however that was done nobody knows that it's the is the motion to dismiss under allegations it survived and went forward but we don't actually have the administrative records so we would if we if the remained went through and we applied a new first of all we have to pay the extra fees even to get phoebe program with your claim of a waiver which we have to be adjudicated when this happened or not right but if you don't think that's possible well then it seems like the only thing that might be available is terminations at the previous one was bad waiting for everything i was waiting for that program right i mean your representation is you applied on a particular program and you got a fee waiver yes sure i can see an argument i don't know whether i was here i thought i certainly isn't frivolous our old if our old i mean the remedy is to put us as best in the position we were back then and that requires a fee waiver and then to look at the application  possible reconstructing that that process is that my well my client also proposed and we we have proposed no fee new application and an unbiased view of that sounds like a proposed settlement where the ship had been redone partly in finland part in in the united states they did we mandated to have more work done on the ship that's not what happened and so we think that what looking for a new application which would ordinarily require putting up to date your information on the mansion hypothetically which i know you don't think is true something terrible has happened in the company and it is no longer really for this application we couldn't not allow the government to have that piece of information could we in a new application i can understand your argument it could be in the most of africa so you or your hypothetical is that the company seeking the loan is no longer able to you know do you know your honor i think that it is reasonable to provide that type of information but the two things that really jumped out at me are the fee and the non biased and if it is whatever it's called the solicitation if it is under the same sort of if it's the same sort of loan and the same sort of benefits as the original michael cation it seems to me my client would be made whole what do you call it new world when you say mom bias is there anything more to this than the direction from the court that the new consideration has to be bias well the would i appreciate you involved in the second in judah case no i understand that the government's position whether it's accurate as a matter of fact or not is that there isn't such a person being involved in that one so if the district court said couldn't have the same decision makers denied it was said that you were denied on the merits because i think your battery wasn't available able to do this kind of thing and back you were guard as of reputational injury because your battery actually coupons over the latter ok i was very pleased to find a quote from judge friendly in your brief but i don't see how it helps you to be the be and who the quotation says an appeal ability turns on what has been ordered not and how it has been right right but you're not willing to reconsider the original decision is that right well i think the way i would put it is and i think it's important to also distinguish between the true different types of applications that we're talking about the two different programs because in the a t v m program they want to have their old february two thousand and nine application considered in the sense that we don't feel like updating our technology and i don't know why they would do that for a program where cutting edge technology is the yes or no out of that from your answer to the head is the agency willing to reconsider its original so the answer is yes but with respect to a t v s i think there may be some slight paperwork requirements they might application and the what we said is you have an opportunity to update it we have from a ship yeah but that's just an opportunity it will they told you they didn't want that opportunity so why didn't you go ahead and do that for you to be because we told them we would we would consider after a substantially complete application was submitted and instead we got a letter back with five demands which is in the joint appendix saying we're not we don't we're not going to cooperate until you meet these five  preconditions and this was when we went back to this trick or jointly and we found the status report and we said this is the plane just position this is our position we think we should they should just either say they're going to go forward with a non updated application or not what about the l g ok so the l g program runs in solicitations this was patients open and then they close the one that was open in two thousand and nine when the original energy program application was submitted is now closed reconsideration original decision if you're not offering that then that's not a request for voluntary remember absolute quest for something different well what we could do is in the new solicitation if they wanted to submit the same information instead of calling which were willing to entertain and the solicitation asked the technology they're offering would be covered under both solicitations so it's really just a matter of what the number of the slow name of affectively done here is dismissed their complaint schrank please the way i read this that that's a final order and i'll see that brings up the previous order also for review so you have to persuade us that this is not dismissal and then my question is with respect to the fee could a court say i am remembering this condition and i knew paying a fee would that be would that be a rea or that be something quite different that is you can have a reconsideration of the decision here but only if you pay a fee i don't know in that case i don't know how the district court could have done that in this case no fee that would have been entirely within the just records right to do and what the district court said at the hearing on the receiving end is well first of all i can defeat the issue has nothing to do with a t v s so i conclude at minimum i can tell you that away and remain on that and on the fee if you if you want to go back and just stand your ground and say i'm entitled to a newbie and i refuse again and get rejected on the grounds that you are not paid in and come back if you want to create an impasse on that you would have had to have done it in writing and not ok so your position is there was no way for the fee and they have to pay a fee to write their position is there was a waiver of the fee and they don't have to pay a fee well it can mean that for that because you're not willing to reconsider the fee issue well one of the things that we could do is actually figure out what's going on with the fee issue and i think it's a bit unclear your honor today and they said right now when they suggest as much in their brief that sometimes it's about paying no fee at all in their status report the one that the district court construed as a rule fifty nine emotion they said what they were asking for it being subject to the original fee required and in their complaint they said it wasn't that we didn't the it's that we weren't given the wiring instructions we were perfectly happy to pay that fee and in their papers in the district court they give three different numbers for what that original fee would be so at a hypothetical that their view is as expressed in their complaint that the secretary of energy we've the feet now if that is the case could you condition your involve your offer for a voluntary and paying a fee that doesn't sound like any case i've ever heard of with respect to remap and that doesn't sound very voluntary to me what we said is if you want to come back and have us reconsider the program you have to abide the agency is taking the position it will not reconsider its initial decisions that's what they want and i reconsideration of the initial decision when and use so you won't do that so now so now we have a final  willing to reconsider their old application you would be considered under the new solicitation but they wouldn't care if you undated if they don't want willing to reconsider it with a fee well they can certainly go back wins for before the comes to this court and says when our rule has been challenge we would like to reconsider the rule but i'm sorry you had to pay a fee in order to get that reconsideration i'm think have their position is that it was waived and that seems like something the dischord asked to determine before now maybe it wasn't waived maybe you're right that it wasn't waived as a question of fact although i think you're not even representing that are you are you material fact dispute seems like it has to be resolved i mean at some point would have to be resolved the question is whether the district court was obligated to resolve it now before it regains the agency and i think it's entirely reasonable for the court not to have not focused on that point and that as a consequence that first order didn't cover that right but i will for one thing the judge actually did bring it up in the original remit here and she may not have recalled it on the second but if you look at your appendix page to port two she did not contemplate a fee right and when she when she says it the second hearing on what she considers a reconsideration motion is look if you're on happy with the fee you can either just refuse to pay it and then we'll all be back  and they have refused to pay it so i don't understand we know that they won't pay it we know that you're demanding that they pay it well it doesn't sound like a gram per me man it's not clear at least it wasn't clear to the judge i don't think at the time that in their complaint as well they say this is a page for you don't have the page in front of you right now but in their complaint they say application was rejected for not paying the fee we said ok we'll pay the fee send us the wiring instructions and they never got the wiring instructions in their application so they indicate in their complaint that they were perfectly happy to pay that they just want to  perfectly happy to pay a hundred twenty five thousand dollars fee if it had been waived it seems very unlikely reading because i think i think they might think that they're that they know that they're not going to win the think all this would be cleared up in a clean administrative racker if there were e mails and so absent that would be clear about whether or not there was a waiver or whether or not you will give a waiver wet what they exactly asking for whether their theory is we are entitled to a waiver on some sort of contract theory or whatever the theory is more when there were entitled whether we agree that we have to pay the fee but we only want to pay the two thousand and june status report they said it was thirty one thousand two hundred fifty dollars and if you're hearing is that it was twenty five thousand so we could always come to an agreement if they said we're willing to pay the original people two thousand nine hundred agreement on exactly what that amount w clean record so we know what we're talking about before the district court is the government i read the government's brief least of page three and saying application must include required the i think somewhere else you said it was statutorily required so that  is the government's position the girl must be a field or is the government's is that not the government's business yes it is there is a fee but i believe it comes from the reg this i think the statute authorizes saw i was looking at a section of some six or nine point six team the c f r called deviations yes to the extent of the requirements under this part not specified by the act or other political statutes you know we may authorize deviations deviation to be honest i don't recall that specific regulation but we do cited in our brief the regulation about requiring a features in oh you know i'm going there changes in the game right now so for example if the regulation requires a fee and the secretary wants the way that the secretary could not make that commitment orally he or she would have actually going to section is there was no way for that is our position yes so there have to be a new determination of a waiver but there could be is that your position yes they could go on remand they could certainly say we think that you should weigh the fee or we think that you should apply only the two thousand and nine fee any agency could make that decision on really and i obviously can't commit to what the agency would say but it certainly open for them to do that and i think that was the district court's point is even if you want to take their position on remand whatever it is if there's an impasse in your i'm happy you could all the issues that you're unhappy with not just the issue but the marriage question can come back after whatever resolution is reached and you can get judicial review just like you want to now on the same question you can get a day after me and that's exactly why the remaining orders are not appealable because all the issues including the key issue all of them if they are unhappy with any of those the resolution any of those issues they can bring it back before a court just they want to do it now if there are twenty they could do it later two there's nothing that's going to prevent them from doing it and that is exactly why the issue is not is not appealable and your honor you call that i think a dismissal order before i'd like to get back to that there's certainly nothing in here dismissing merits is not true and that the original determination that their battery doesn't do what they think it does is not true as a district court without authority to vacate that determination yeah i'm a little confused about the back and forth in the various hearings was all about i think the idea was too late nothing that could be done and the government's position i thought was that the most that could happen is that that case could go back for reconsideration that's what i took the government's position to be and what they're saying is well there's another thing that could be done which is the original determination could be vacated and that they say it causes an reputational injury and that they w o district court and the only thing that could happen even if the plaintiffs won the case was a reconsideration untainted and the vera for you might as well re man for reconsideration untainted their argument least in part is well there's actually one at least one more thing we want which is a vacation of the determination right i don't i don't recall this did it part of the just report paper that i will that the old decision wouldn't be vacated but since you want reconsideration is the main thing going to the substance because ultimately what we're talking about here is they want their loan and they want the reconsideration in order to do that so not going to reconsider the merits either but clearly that's not anything that anyone has any any any question about whether that's proper to remit so we offer him a voluntary that you made of a remapping did it include reconsidering the fees i understand him when i read the hearing transcript is the government's position is you have to pay the fees sorry and the court granted a voluntary agreement and on the theory that there would be a  not was it no you're representing that the reason that would include a reconsideration the fees i'm asking whether the government originally represented no but i think i want to be clear about the second part which is i'm not representing anything like you just say what i'm representing is if they want to ask for a waiver on remain and they are entitled to do so and then the agency would decide on doesn't it affect our jurisdiction a point because of  saying that there's an issue that's not going to be considered human fees then you haven't done voluntarily as she just said it doesn't look like a voluntary and reconsider what we're certainly well i do think that first of all i don't know what the answer would be if i remained they asked for some sort of waiver second i think it would clarify exactly what their position is because it's been a number of positions in terms of whether they're think they're entitle to no fee or whether they only think they're entitled or the whether they agree that there's a b but it's only two thousand and nine and then we would get some resolution perhaps with them on what they thought the amount was usually given three different numbers is it possible that we have  remain with respect to the key issue all that issue would be back before the court after the v m issue was resolved and because all of the issues about fees are hoping to get to the plaintiffs ended that's precisely why no core issue including the issue when he was actually resolved nor would claim to be prohibited from raising those issues in future proceedings and because of all of those reasons none of the issues remain open it's just not on appealable order so i don't know how we get to the point that the even the discrete key issue becomes a deal of all if it remains open to the plaintiffs to argue about the fee question after the remaining proceedings so it would have to be something final and there's no finality about the fee issue no matter what happens on remand with the fee imagine that we're  what about that question of whether there are court orders filed disposition in light of having resolved some but not all the issues in the case well that's a that's a great question i think that what you're actually you're welcome thought the court did something final with respect to the fees i don't think that it did but if you did that you would also say everyone seems to have to agree with this is nothing final was done with respect to fees for a d v m because there are no fees and so even if me of course doesn't think it's willing to do that so it just wasn't an offer to do without a fee know what i mean it no i but again what i'm saying is we didn't offer to do it with no fee because we don't think i we certainly raised that i agree with you there's four times in our in our motion for reading that we said that they're going to have to pay the fee and the reason why we said at the end of the sentence as they've indicated that they're happy to do is because their own complaint this is a joint appendix paid twenty six says well after that they allege that we really had gone on a waiver and then afterwards they said well we're happy to pay the fee just send us the wiring instructions and we never got it  issue is the main hurdle here then it's their obligation on the motion to bring that out and make sure that what they did instead is essentially overlook the four times you said they'd have to pay the fee go back and jointly but we still have the problem we don't have a real man to order that says the folks doing this decision won't be the people who do the decision before and we don't have a vacation of the original order so on a t v and listening to opposing counsel and listening to me there's some it's pretty clear that both sides were unclear as to what the remainder required and i think that was in the government thought one thing we think another thing that's why part of the reason we're here we asked on the elder we s specifically after the reading and we asked is if we leave you a fee and they said no it's in our letter it's independence at two eighty three paragraph two so i don't think there's any question we thought the fee was waived and we wanted it waived below and when it was remanded that's the first thing we asked for on the a t n program yes you can we could apply for that now outside this court room without any order whatever is open right now my hiking but do it there is some fear i think on our side about we've heard we were to do it outside i believe there is some concern about that because representation sent it back so if you don't get the result you won then you could raise that that issue back again on the rematch why why isn't that an appropriate how mike doesn't know who was involved in the first one and that's a question   take everything else out of the case and imagine all you were asking for was on need to be had and the government represents those people are gone and the court says all right we're going to just read me and i'm not representation because that's clearly what the government's doing what the courts doing and there's no fee would that be it would have been all right your honor i don't think it would have for this reason it isn't as if they're reconsidering they're asking us to do something new i haven't seen any of these cases where the wee man makes the you have the same argument before yes your honor under that under that hypothetical ye complaint that it was denied even after this we believed it was waived we were told it was wait we acted at all times as it was way when we submitted this according to playing they then said oh you need to do this and obviously there's ani a what's going on and we said we'd send a wire and they never sent the instructions but that doesn't mean that we're not relying on that representation and as you see as i do refer your honour's to appendix two eighty three paragraph to which is exactly what we did after the reading