lodging services to army travelers in exchange for the army directive to out letters to the hotel management did not contract or continuing litigation due to the army's inability or unwillingness on the contract so the claim in this case is based solely on the future the remaining years of the contract one of the parties to do when the army either is refusing or unwilling to perform well that's where i'm confused if the in the first case the it's entitle to damages for the future because the army's reach is continual the every day that goes by the our own does not comply with the contract let's see if we understand if we are all on the same page as to what we mean by future but i take it there are three time periods one is the time period up until the filing the complaint or the disposition in the two thousand and six action another is the ongoing period during which the quantum proceedings are going which will come to an end it some point and the third period is the period after the end of the quantum perceived now i take it when you say future you mean that middle period right you don't mean that the quantum proceeding is directed a will result in an award of damages for a period after the end of the quantum period do you or do you it's uncertain your are ok but during asking for it but you are not sure that that will be the ultimate relief granted  quantum that's correct in her why the judge's decision that the nov two thousand and six decision issued by the board found that the breach went to the core of the contract the board appears to have concluded that was a partial breach and in which the quantum proceedings end correct is that what you mean but your journey was a long contract if the going to get one proceeding where the end tomorrow would you anticipate that the award would say this is the amount of your damages to date if there are additional damages after this date you have to come back and ask for more or would you anticipate that the award will say this is the amount so far doesn't appear that there's going to be any change in circumstances and therefore the amount that you will suffer until the end of the contract will be x amount we ordered that as well or do you not know which of those at this point will be granted at this point we don't know your honor and certainly mi would argue for the latter but the problem is that since the decision came out in the early is known that it is breach the core of the contract it is failed to address the contractual problem what it's trying to do is convert the benefit of the bargain breach and that's why this claim is a new claim and it differently but i don't i'm having a hard time seeing the difference in the facts other than that happenstance of having a board decision in the middle of all these proceedings and the words the board said that the day before its decision even though the army even though there was a significant breach and even though that breach was sufficient to give you a ri and because initially the army didn't leave it was in breach of contract if not what he was doing was in compliance with the contract and was following what it was supposed to be doing when the judge's ruling came out in two thousand and six the judge told the army time the army has done none of that the army has repeated the contract now as a result of the two thousand and six decision the the army should have either fixed it or ended the contract it didn't do their conduct their engaging in that there what was the denial letter in two thousand and eight you say that is an up to now create a basis for an anticipatory breach it isn't mean initially what happened was this and said you know the decisions came  out the decision has come out and we expect you can't and there was no response there were no assurances given there was no action taken misadventure to file the claim in response nothing happened there were no assurance get assurances given the final decision was issued saying we're not doing anything only after mr file suit at the burg did the army then suggest it might take some action but since that time no action has been taken ok do we get to the said but at the supreme court has allowed waiver in it out of variety of discrimination circumstances and writing of other circumstances in which there would have been jurisdiction and in federal court to fight don't i don't think review and to resolving it through a separate mechanism in this case the question of whether or not the c e can be graded as a matter of law or inside ott for the proposition that it cannot now in that case recognize it was a little bit different but it's important to remember one of the fundamental rights granted in the ca when it was an act in one thousand nine hundred eighty eight was the right to judicial review and that's a fundamental right that congress wanting particularly contractors as well as the federal government have when would seem to support your position would seem to say that the contract provision that says that the agency board is final for all purposes is not going to survive the  and basically it's saying as i read it the wraps i'm misreading it but it seems to be saying that the regardless of any contract provisions that might seem to limit rights of review of the agency board the agency board is only final with regard to questions of fact in even then there are exceptions but not fine with their protective questions of law which which is the basis for  directs which included her judicial review but it says notwithstanding any contract provision to the contract which is the language that the c t a uses when it wants to say you can't contract out of this one c ts to be honest on and then it follows up by saying what you can't contract out of is the notion that there are limits on the board's finality why doesn't that govern because again that's a procedural right here i mean it doesn't have jurisdiction to to this court doesn't have jurisdiction because of the waiver and therefore you don't get to the provision that says you can't waive this case from a little bit farther than the details of this particular piece of litigation doesn't concern you glenn and the department of justice dead there is a real risk that goes along with aggressively suggesting that certain entities can engage in contracts without being subject to having their contracts enforced in court and doesn't that risk isn't that risk a risk to the government it seems to me you are at minimum going to pay more for the contracts that you engage him enter it in perhaps you won't be able to get a lot of people to respond to by relying on a decision that if there was no material breach and the bottom up that they're not there were like that i mean if you look at their claim they're relying on totally new facts what they're saying is that that there was a breach of the contract and even if it anticipatory as of that point in time the fact that you're arguing that they can't get future damages the fact that you're arguing that that you're continuing to breach and that you are actually making statements that says we have no intention to do anything other than continue to would be able to decide in their favor if it decided that they were entitled to that belief or do you think that that's outside of the four corners of the proceeding i'm well i would say about it it doesn't follow  is what they're seeking to do which is essentially when formula because they're still making money out of the contract well as to the circumstances that may or may not have changed i mean again you would agree i contract and they're trying to meet miss and perform a contract that it never agreed to and some of the jurisdictional questions the government's argument with respect to section i suppose and this may not be all that hypothetical of the language of the statute but suppose that the congress says with respect to a particular agency this agency is going to be receiving appropriated history of the statute reflects that it's a concept of administrative thing but secondly i will be in this case but but just more generically if if you had such a strange statute it looks a little bit like th statute but if you had such a strange that it wouldn't be a reasonable inference to say that congress didn't want to really use the words withdraw the waiver that's what it did i don't think so first one thing exactly like that generally  much or nefesh i don't believe so your honor i don't believe there's anything in the legislative history that that confirms that initially when congress was looking at whether or not to exclude military exchanges there was a discussion about whether or not all the athletes should be excluded for jurisdictional purposes and what there was a debate i think it was on the house floor and actually what happened was the conclusion was  else very briefly in rebuttal that you wanted to make as an affirmative point the only other point i wanted to make your honour's was that the fund is not that it would be the government is wrong in arguing that the fund is not an executive agency under the ca an executive agency it is defined as either an executive department or military department the funding is a said c'mon component of the army its name says that is the u s army