money be repaid is not a claim that from the bank accounts of the tribe in the to repay i for that no damages can be awarded because those fossils appropriate for specific hears have already been allocated and they're gone now you're saying what you're saying there is that by definition it's a request for damages because it's a request from digits in the tenth circuit did you urge that the plaintiffs there need to file their claims in the court of federal claims i don't recall th would they would be there so that the court could should it should agree with with the players in that case you could simply order specific relief and say now that money that we've set aside i was ordered to put back into that file for the use of this tri only way the tribes could ever you know assuming they are entitled to this fund money and assuming that the government's failure to provide it to them or more discounting of what was owed was wrong that the only way they could possibly recover is if they get to district court essentially in time to know that the government is going to short them and get a mandamus relief or a specific performance relief with in that yea firstly have to show the reason why mandating requirement and there's no money made requirements actually there simply requirement that to a future fund the line of credit a certain amount might be allocated but that is necessarily controlled limited and subject to a host a bevy or a regulations that means the tribes themselves will never see that money they want in process that money and use that money for the benefit of the individual in the residents who are beneficiaries of the fund it will not say pay damages we're paid the money directly so if if a court of federal claims is not the right course then where could the court of federal claims of transferred this action to any federal district court where with help money from certain tribes and now those tribes would like to get that money back right and where can they go to get that money back at this point they can not why and i'm just trying to understand better why are you saying it like that i guess you're saying the tribes are now foreclosed from being able to get that money back through an action right they can present in cases lost in this actual occasions they can present the  before you go into the abstract theory explain to me just factually what's defective about their ability to go into district court i mean what blocks serve the court of federal claims from transferring this case the civil action i don't know what that means calculated that there was a debt that there was an improper overpayment to the tribes and i began to recapture it after giving the tribes notice discussing how they would like to have that just in all cases it was like just being future grants basically i'm just really focused on the money that already has grasped right and so just focusing on that and what we see is the court could invent or could entertain that question really and it will be able to grant no remedy and that's what we're saying the because to the extent money has been set aside and to my knowledge it is not then when you say that money has been sent can you yes can use a use active voice i don't understand so who is setting aside money who is taking money where is the money located partial payments were made what do you mean partial payments were made who made what payments no payments were made hide ducted from the line of credit but sitting at the treasury for the tribes flying  money is but what about the fact that the district court specifically found out in the tenth circuit that that hud treats all of this money is fungible in other words that that you keep trying to say it has to be in this particular year and if you miss that window for your mandamus relief you're done and yet hud admittedly treats all this money as just one big grant pile which is what congress wanted it to do and so why why does it credit and fluctuates and then money and there's no requirement that the tribes remit that money however the principle of an appropriation is only available in the year in which congress how appropriate and by a lot underwired to is there some lags to that where you're saying yes basically yes and i really are you saying that you've never used money from subsequent fiscal years to to pay the tribes under payments to make up under payments i think there was a specific finding a back to that effect in the time that there were that the hyde actually goes back and makes from later years allotment pays back some under payments not to my knowledge that those must thousands of statutory grant programs the debate up on an annual basis so is is is there any limiting principle is your view that if there's a statutory grant a lot of allotment of money than there for it is not in the nature of the court of claims money mandating statute and you can only go to the district court and since we're dealing with annual appropriations the only way to get removed from the district court just if you get in there on a preliminary injunction mandamus basis before the is no that that there is no ability to allow the payments to be made consistent with the statutory scheme even if there are characterized as damages because of that because that would really be a matter of injunctions would be the court attaching basis do you have a special master that supervises the tribes to make sure that they go to the correct places is that for all right i can do it right why can't hud do that the same way it does for every other award of money because the money would be written into it would be free and clear money judgment simply money in compensation for a passage into the plan the plan is to do everything anything you want so you're asking a court order to basically issue an injunction and say ok we're going to give you this figure out where cases should be filed that there are money damages cases and money damages cases or always find out in the court of federal claims and then there's specific equitable relief type cases where you're trying to get  certain kinds of funds but they're characterized through whatever reason is specific equitable raef relief and then therefore those are a p a actions so is isn't always the case in the government's view that you can only file in one court and not the other that you either have to figure out whether it's a money damages case or equitable relief case and if it's one then it's in the federal claims if it's the other then it must be an a p a action and district court and i think  situation where it would be permissible to file a claim in either court federal claims or district court because maybe and one hand it's considered equitable relief on the other hand it could be considered a naked money judgment and so therefore under certain circumstances there is overlap in terms of jurisdiction between the federal claims and the district courts yes i suppose  bound by that finding that lisa's in fact that could that claim could also been found in the court of federal claims that's that's my question no because i'm talking so no again it is that would be right so m i don't know design i'm trying to got the answer was that you can't file the same claim i thought i thought i understood ranter to be that if you've got a different cause of action or one cause for the rest fact of relief and the other it damages you and one case involving parties all right and now you're greasing it here i mean is that firstly is it is that question on appeal before us and if so let's talk about the merits of that government doesn't have the plans for the tribes money in his pocket so much not so much that the government doesn't have the tripes money in its pocket because that gets in the whole question about how whether money is money and whether it's been treated  hud i thought that which the judge said was that the distinction is between like for instance where you make the taxpayer pay money and the taxpayer is trying to get it back that that  would be a classic exaction we versus a situation in which the government just didn't make a payment that it should have made right so in a tax cases those are the classic cases as are but isn't that the distinction the judge t yes basically saying this was never their money they would have to establish it was their money in the first instance which takes it right back to the question of whether we're going to that's not he didn't say they didn't establish that they didn't have the right to the money what they didn't establish was that they had the or misapplication of the substantive provisions that caused the leibowitz action so that's what i saw his reasoning was i didn't see any reasoning that suggested that this money doesn't ever belong to opportunity for the tribe to have a hearing what's the remedy when the hearing doesn't happen again you can go to the district court well the proper or the proper  in cash into their bank accounts there's nothing in the law they can possibly be suggest why why it is hard to have a normal practice now or common practice of just never giving an opportunity for hearings know about all the facts are you saying this was a was lots of back and forth as judged as judge we found again well me too and so when they first let it know just a failure to follow procedures he basically said look you've agreed with all these things would be the purpose of having here you would also have to find a the cites to where the evidence is that it's clear that there was something that was going on in the back and forth between hyde and the tribes that shows evidence of something that's akin to a sufficient notice an depends on whether whether the statutes money mandating that there may be some remedy for the failure to ever hearing but only if the statute happens to be a money manager right he would have to fight and i would use are already mandated but i suppose it's a fair shorthand and brought this case under the amended version of the statute that allowed us forty five days to file a claim challenging the us actions so the act has a forty five day limit to filing a claim it in the amended in the amendment yes it basically changed the allocation formula in response to district court ruling in fort of the original statute so congress amended the statute but it also said that tribes that were grieved by prior misdeeds could bring an action within forty five days of the amendment and that's what we did here but without the government is saying that despite that point five day window there is no place that the tribes can jurisdiction well before we get to the illegal exactly piece of this we've got precedent in our court namely the national center for manufacturing sciences we've also got the cat's case why are they distinguish day nor were invited also reversed the district court to transfer that case to the court of federal crimes right and it said the question is whether this case properly belongs before the district court or get money justin it also requested injunctive relief prospectively going forward in our case we're not asking for any type of prospective injunctive relief we're just asking the court to issue a judgment majority and they seem to characterize federal grant programs that the granting of these monies to subsidize future expenditures a as not really being if you're denied those grant monies it's not something that is compensable as to some substitute belief for some injury or of her loss or labor but it's something that's more considered specific equitable relief when you're trying to get that money that you feel like you were unfairly denied in that piece federal grant programs and so i guess the problem i heard one concern i have is how do we regard that as a money mandating stature keir when we've already said in describing the federal grant programs as or lost under a federal grant program is something when you're looking for relief it's not necessarily money damages from leave but it sometimes specific equitable relief well i think that it all depends on how  for monetary relief but it didn't hold that that request for relief would somehow divest a claim form of jurisdiction in a case where would otherwise have jurisdiction to wor it was and in fact what national manufacturer said is that they were convinced that mere money damages would give the problem here is that if we treat this these prior years misallocations as damages that instead of complying with the statutory provision that says that the grant amounts for the tribe go directly to the recipient that in this case the court of federal crimes or be forced to simply award monies from the general fund to the tribes and there would be no ability to control how the that means but but we're talking about jurisdiction but i can't help but have a little bit of concern about saying is this just a shell game so the question is what court should this go to the government response is well we could argue over which court a goes to but it doesn't matter because they get nothing in either court is what they're saying yes and i hope i hope that's not  well what is the answer to your question the big concern the government seems to have is whether or not if we treated it damages as damages that they ability of hud to actually conform to the requirements of the statute that the money responses one is that it really doesn't matter because it's not a question of the tribes getting money and being able to put in a casino it's a question of this particular tribal organization that has to spend all of its money on affordable housing getting the judgment right and that secondly you are saying that regardless of any limits on the court's authority to order strength attached that as long as the parties are allowed to will and can agree to strength attached then the specific equitable relief was they were looking at the nature of the fund and the relationship between the federal government and the plaintiffs in those cases was an ongoing relationship where the federal government had a right to continue monitoring how the block grant money was being used by the plaintiffs there and that's similar to what's happening here with these funds in the sense that hide under the statute has the right to continue monitoring everything in and the tribes are restricted in how they're supposed to use the money and hide has the right if it sees it the money's not being used for the restricted purpose is to then withdraw money or even terminate any future grants and so in the end what we that because there's an ongoing relationship between the tribes and the federal government which is intended ongoing relationships between the federal government and the plaintiffs in those other cases that was in those cases a large part of the basis for why they found that what's going on here with these grants is specific equitable relief so that's my concern with your case that it seems to fall into that same kind of ongoing relationship ok that in the other case drove the conclusion that it was equitable relief that that was plaintiffs were looking for so why are we required to look at your situation is also looking case in our case is that in both of those cases the plaintiffs were not simply seeking the naked money judgment they were also seeking prospective injunctive relief that would require her to take or the government to take certain actions here in our case we're not asking for any type of prospective injunctive relief because the damage has already occurred so if they denied my client's funding or homes that my clients had to maintain an operating but any any money that you would get from what any court would not have no strings attached there would always be strings attached under the statute there were always be a monitoring that the federal government would be required to conduct over any funds that you would collect from from the federal claims or from district court well the case for the court of claims would issue a money judgment and i think that it's it's the it's not a procedure it's not just a due process claim if you look at the regulations under four one six five they're very specific and they actually prohibit hug from recapturing money unless takes certain actions and most actions are meant to give the housing authorities the right to correct a deficiency before they recapture funds the deficiency in this case was the housing a stanley was a case word of the government i think took back and paid her taxes right in and based on a procedure that the government was not authorized to use could you just go back to what are the mechanics of what a tribe needs to do to perfect an a p a claim they get the money withheld from first of all there is there is already under the regulations to see the secretary's agreement that the money is owed and if it is that my money will be restored and a lot of corruption thing i said earlier you asked whether you asked where the money could ever be adjusted upwards reason for the money has to be used in the current years of the two thousand and seventeen funds it was you know you say that the statute itself actually contemplates that they propagations are not used i mean the statute itself says you report at the end of every year to con about how much grant money is left over i think so the notion that you're throwing it all out in any given year and you're dividing it all up and you never have another penny left that hangs over doesn't seem to make any sense because the statute doesn't cont will report to congress all the monies that didn't allocate and so you're saying to me that you allocate every single penny on your card allocate every single penny doesn't seem consistent with the stats thirty one fifty five there could be a mismatch that change the calculation with respect to whether or not the statue of this money mandating if indeed what i heard you saying is you know ten years later they can go back and get that we leaf in terms of damage is or money that is o understanding the mechanics of what it dr needs to do when they believe that the that it is improperly with health money for pain a given appropriation here based on how it's miscalculation of something that limitations and then what did they what did they do or do they say we we want recovery of those funds that were improperly withheld in two thousand and four and so the problem isn't what's happening in basically stop the allocation of the starting allocation so then so you're saying the gas in limitations is meaningless yeah i don't understand you just told me they have six years to file their action now you're telling me no they have to get in right away  can file anything and they want as long as they don't want any relief because hud might spend all the money and exhaust all the appropriation funds so what would be the point of filing something in two thousand and ten when beyond simply saying it's a matter of there wouldn't be a point is what you just said right there there were not so what to what could they possibly get in two thousand and ten if they filed an action six years after the mis withholding in two thousand and four i think we're saying there are nothing  so it is a farce it's not so long allows with the law allows if the going ok will join question to you my question to you was premised on an ability to actually recover money not just to have a lark in filing an action ok what would be the way for them to actually get the money back that they believe in appropriately withheld in two thousand and four and what we've said is a year i don't know there's been a discussion between the tribes and the decision is made no no it's important to know when they need to get into court because that you're telling me it  it's contingent on getting into court before the money from that appropriations years exhausted by hot yes ok so when does that happen before in the very appropriation year i understand it happens under forty one fifty what was the effect of the two thousand and eight amendment it seems to go back several years and contemplate recapturing it is dodgy funds regulation which was it was an issue when paxil i basically said said that as long as you file within forty five days then you can go all the way back to several years before so what was the point of allowing them to go back if there was nothing they could recapture i don't know what congress is thinking i do know that if they ha has to go about it in the government's view under the a p a you've got to get in early really early to protect yourself and then you have to file a some kind of a motion for an injunction why is it proper why is it that hud can withdraw money from a later appropriations year for a tribe why why isn't that if hud believe there's been some kind of overpayment in a prior year it should it ought to go back and get the money from the tribe for that very appropriations year in which they were overpaid rather than taking it out of the dri e for later appropriations here i mean that seems like a fungibility notion going on between appropriations is when it comes to those funds and yet at the same time when the tribe wants to do that