have any action of the secretary alleging the failure of the secretary to make the decision not take any action i wasn't there or fanny to take some action which is the  acceptance in storage of the spent nuclear fuel we believe that the breach of contract that took place was not a failure to act we would distinguish between it wants to do by writing the statute it did and there's no indication that it was tinkering with tucker accurate stiction and indeed the district of columbia d c circuit this co within the scope of section one when nineteen now this says take any action under this part yes what is under this park referred to when this first section was written as you know pork and all subsequent courts have found that this part includes by cross reference if no other reason certain activities that take place under section under part three of title three of the  provision we're talking about section one eleventh of the nuclear waste policy act provided for the purposes of the act of creation of the nuclear waste fund it provides more importantly in our case for schedules for the nuclear waste program act taken under section three hundred two of the doors policy act which is not in part one but rather part three but because of the cross reference back to the purposes section all these chords including federal circuit i believe have found that that is the appropriate jurisdictional source for activities under part three the issue here howard is whether a breach of contract isn't actually taken under those sections or failure as you recall section three o t requires dealy to enter into contracts it doesn't deal with the issue of breach of contract there's nothing in the act and it's always policy which deals with breach of contract says nothing in the act which deals with money damages the talk arac and a little talk or act which also has been applied in this case specifically deals with claims for money damages and that's what we're dealing with what about what about the city of perth and kay the city of burbank case really set up to standards to determine whether a contract could be a breach contract could be brought in the court of public claims i believe that neither of those two met in our situation in the twenty years that i've been litigating deploys policy cases instead of contract cases this is the first decision that i'm aware of that has ever suggested that section one nineteen indication that congress intended any other result we think the major underpinning in the january thirty one two thousand and five decision there are two we discussed one which is city burbank case and the other is the treatment of the standard contract as a regulation which we think is already been decided by this case it is not a regulation is a contract has all the indicia of a contract and this court in particular has treated it as such i'd like to reserve the rest of my time and  court needs to look at to resolve such cycles or for a finding that in fact all these cases should go to the d c circuit the first one is one that mr silcott discussed and which has been long established these through the is language in although judge rader referenced the language under this subtitle under this part depending on if you look at the codified part of the original statute the d c circuit has looked at section one eleven  recognized that it in fact creates the purpose of identifies the purpose of the statute and those purposes are include some matters that then are discussed in section three zero two section  fact talks about the secretary performance of his functions under this act as a whole not simply the title three of the act but in terms of implementing title one subpart subtitle a which is where the judicial review what allegations are made in a complaint however in this particular case we further believe that assuming title one one time does cover some section three and two matters in this particular case the contract claims that ri could avoid the question of whether one one nine hundred three or two by finding that even assuming that it does without deciding that that section one of the nine as written would not cover the type of contract claim that is here we would suggest that in various cases such as rumsfeld versus of companies from two thousand and three this court does at times even if it finds it unnecessary to decide particular issue that it's highly of the city of burbank test in finding that certain contract matters would go back to the original circuit here we have contract provisions that were not statutory mandated it's really raising the same issue and it's gladly attack and we believe the d c circuit jurisdiction to enforce its own mandate is frankly we believe it's it's a red herring it's simply not necessary for this court to government's reading of that is is an overreaching i think when the government suggests the boss medicine seems to disagree with you on the reason that the government indicated that it's because it's not very clear and i don't challenging statutory terms a contractor in this case is not a challenge statute this case is not a challenge to a contractor this case is a breach of contract a simple phrase for unfortunately very expensive breach contract case and we would ask that it be continued to be treated as such before a court if at a place your argument is spent to be taken under advisement