it please the court your honor there are the one hundred fifty six million dollars judgment that the trial court entered against united states in this case the united states is only appealing to discrete issues  down some of the issue i mean this is a case where we have two issues that are in play in several of the cases and guidance from the court here would be helpful to the trial court and the government and the parties the first issue that we ask the court to reverse the court on is the issue of whether or not the plaintiffs isn't tied are the plaintiffs entitled to maintain suit upon an assigned claim do you think there needs to be in the statute a separate line item in order to or to transfer be able to transfer a life will be for past claims yes turner and we rely for that upon this court's decision in ginsburg beat austin which quoted from an adopted the language of willesden on contract contract language does convey the right to pest claims suits that that as between the buyer and seller it's clear they intended to transfer that and did right and you're not in their private in their private tr you're not disputing at least for purposes of this appeal what the contract does like if we were to decide that the statute in fact allows the transfer of past damage claims part of this appeal does not include whether or not illegal we are yes we are saying that it was ineffective against the government of the party private parties can do whatever they want to mean there are no saying there can be no transfer of such as this of of cooperative sites and any nuclear fuel on that site that there will be a transfer an assignment of the contract in fact although the assignment of contracts that generally bars you signed a contract the nuclear waste posse act contains language that permits that says that the ri whether or not the preexisting damages claims that or are you crude as of the date of the contract assignment also necessarily pursuant to this contract language statute language especially language also there was at least contract that was signed to a new property owner and there was an ovation of the contract that government approved the original property owner then sued the government for back grants that had accru willesden said the assignment of rights under a contract continuing contract does not imply an assignment of rights for previous breaches of contract meaning prior contract claims the original contract holder maintains those claims because once they become perfected choses an action they separate from the contract itself and become your company right out is the interpretation of the contract but we you've already agreed that there is no dispute that in this contract the seller did in er and the contract was assigned there's no dispute about that there is a contract between the original contract holder and the new contract holder dominion now and that contract between this private parties they purported to sign not just the contract but also preexisting damages claims the issue that and we don't dispute that that that language is in their private contract we do dispute that in the government's contract with the original contract holder that's now been assigned to dominion that we are somehow signing of rights under a continuing it does not imply an assignment of those prior claims it the under the assignment of claims act and these you mean congress did create two separate statutes prior to n of contracts a separate one preclude the signing of claims against a government clearly congress understood that there was a difference now i know they get talked a lot together but together are all good first there's certainly there are two different statutory sections but i entered into under the section may be assignable is so broad that it shows congress's intent to encapsulate both continuing contract obligations and also rights for past particular language of that contract in a certain way and the fact that this statute has not the identical language but similar language that some help ginsburg is now binding on us in terms of statutory interpretation of somewhat different but not exactly the same language plainly ginsburg is not directly on point here it's just persuasive authority but ginsburg did rely not on a property law treatise or a lease hold treatise it relied on willesden which is that treatise about general contract law so it wasn't just discussing precludes you simon of claims clearly congress understood that there is a difference between the two in a segregated them in its mind here congress did not say that it was up to the end up e p a does provide a limited waiver of a waiver on  cesspool that holds these things right that's nuclear waste so so we're talking about the government going to pay whether it pays the prior owner the guy who built it or the current owner of the company that assumed the nuclear waste and is now  possession of the cesspool so either way the government owes this money there's no i mean i know you dispute that you should get a credit for other stuff but either way the government has to pay these interim storage fees what's the big deal if the people if it's clear that the contract in party is intended to transfer the right so that you can't be double sued well then what's the big deal aside from the waiver of some unity issue which you know in the rules apply to that there are issues here well we decided that there was no decision below that said the seller retains certain rights and the buyer got certain rights but the buyer definitely got the right to all though the assignment here did purport to do that the contract the original contract holder did brief is that what we're really talking about is an opportunity benefit at a time value money issue what you know if that there is a gray area in case law about what is actually direct directly  has identified in yankee for how and damages are supposed to be calculated what we do is we look at the poor world the costs that were incurred in the world what would have had been paid in the pop four world and compare it to what actually was paid here  have been made but we are asking for the opportunity to find out what whether i mean the other possibility is that too many didn't actually have the money to pay and would have had to take in a loan to do that and it saved the financing costs that for these past thirteen years on the feed it would have had to pay and i'll start with the simon issue of the language of the nuclear waste policy act allows for the assignment of rights and duties to a party of a party to a contract the right to pursue preexisting claims is contracts act the government's argument as i understand it says that notwithstanding the language we think it's quite clear that somehow even more is required you have to use the word claim or you have to cite that the separate claims act or some something along that line is what i to a contract our position is that a sufficiently broad to cover the waiver of both acts the claims act and simon act but as a second point i would like to make a response to that is both of these statutes have their origins in the mid eighty's so they're interchangeable if you go back into  legislative history to some of the names change the provisions change there's overlap in but what is clear is that both acts can be way and the types of waivers we've seen in the type of applications we've seen that for example by operation of law a merger or bankruptcy case after case after case tough go of this core supreme court precedent that case three thirty eight us three sixty six says that those can be waived by operation of law without the sort of sort of heightened language the government's as a matter of the intent of the parties or the implications with the common law of a state law issue there ok the concession here today and the facts are not disputed the two private parties intended to to convey this right so the question then i but the question then is with with that clear intent does does the waiver of the nuclear waste policy act have to be more clear than we know to the question counsel is exactly the same it's just you're looking the different parties intent right the question with those cases is did the people writing those contracts intend to transfer their rights for past claims and here the question is did congress intend to allow all by the same language for the transfer of past claims and that's the issue still one of looking at the intent of somebody that drafted this exact same language and figuring out what their this language should be construed as manifesting their intent to transfer pass claim so i not quite as clear i think that the extensive discussion in the ginsburg case illustrates that different states different presumptions may you know you know there may or may not be as clear a landscape as the question suggests but more to the point you don't have a single case that skate that i suggested might be clear i don't have a case that either confirms or contradicts but what i do know is that it is hard for me to characterize and with respect i think hard to objective we characterize a what was attempted to be transferred in this case the right to pursue preexisting damages just using the english language is hard to characterize as anything other than a right of a party to a contract well what else the right of the party to have the government continue to enforce the contract to have why wouldn't it be the rights of the new buyer to force the government to perform under the contract to ultimately take over this way while there could be all sorts of way to fairly fairly characterize what was attempted to be to sign here ok the right to pursue and recover these preexisting damages is there a way to say that's not a right to a party in a contract i would respectfully submit know that it is a right or right to also be a right good an erosion after the well again as there's all sorts of rights that it could be but is this particular right we're talking about here is that somehow not a right of a part o contract i can't get there i can't get there with the language that congress used and in the nuclear waste policy and again if you're as has just gone are so if your prior question said if they had just said contracts ok i think we would have a closer question here but they didn't suggest to get as i talked about earlier waivers by operation of law again that the case insurance company of the west to forty three a third thirteen sixty seven this court in two thousand once it equitable subrogation claims ok a party just stepping in and there's a lot of case law in that in that area there's no sovereign immunity issue there as is the west case holds so again that the number of cases tough go aside in the briefs that say that implied waivers can occur that  well and some circumstances then again don't the prior party was named at the caption of this case but again i don't think that's material for purposes of the issue currently before the court it wasn't signed and was pursued by dominion you know but you would have time issues now i guarantee you with the prior owner of th this transaction occurred well more than six years ago if that prior owner tried to come in and pursue these claims now i can imagine what my colleagues on the other side of the room would say about the timing of that sort of plan but more to the point again  again getting back to the language of the nuclear waste policy act that sort of raises other policy reasons for overriding and i don't think you can you can say that there are here you can't override the clear language with the policy and the sort of parade of horribles that the government has as alluded to in its briefs that we can't keep track of you know there's not that many of these contracts out there these nuclear waste contracts and the government knows exactly when they're assigned there's a notice provision that this sort of notion of there's a multiplicity of people coming in and we don't know who has the contract rights i would suggest respectfully is red herring you know exactly who has the contract rights and the contracts have to go with the fuel if you read the hope law as it's a sign a bill with title to the spent nuclear fuel so that if the policy a way were shoving immunity for the plane you know the now the you know the let the that language you know sort of just appear you know and there's and there was any sort of debate for example there's no collateral business undertakings were not appropriate and that's with respect exactly what the government is urging here its investment or cost to borrow all of these sorts of things that as a matter of law and analysts out of the hug contractual bargain it destroys the symmetry of this you know the government says we don't know what happened with that you don't get to take discovery on flawed legal theories as a law as a matter of law in the use communication case that was resolved in a motion and limited as a matter of now we cited the portions of that in our brief the court itself again it's focused on the on the more immediate issues of is the three actually do it oh in the sort of economic benefit was an afterthought in that case as it was in this case but nevertheless it was presented to this court urge as a basis reversal and this court did not do it so we have to raise the question of how many sort of lights at the apple is the government going to get on these one time fee defense we would suggest it's high time to put it in after contract assignment is made those claims would then become chose as an action that are owned by the perp and that had that contract at the time that they arose the tough coke case that from the right part present this court talks about how somehow changes that differentiation and the plaintiff's counsel said that it's very you know there are a lot of plaintiffs in these cases there are a lot of contract holders so it's not hard for the government to deal with these assignments because they're just so clear but will mention that in turn appendix page six hundred twenty is the notice of assignment to the government in this case you'll see in that and it's very similar in other cases the letter doesn't actually mention the the breakout of rights that in the private agreement the parties had if you'll see in the private agreement the plaint the original contract holder did purport to retain some claims relating to pre one thousand nine hundred pre one nine hundred eighty three fuel in the notice of assigning to the government there's no mention of that so sometimes there are these deals between the private parties were finding them we get the actual persons that purchase and sale agreements there are all kinds of nuances with regard to the assignments that the government's notice didn't actually provide any notice could not also be transferred would essentially don't they're an obligation to put that in the standard contract the obligation i'm not sure i completely understand your honor i'm really trying to understand this possibility that there might be a change of ownership of us we're power facilities over the future of the planet or as long as this was supposed to apply must publications of the government under the standard contract to accept the waste would have been in groups well your honor in fact the statute itself two responses first the contract doesn't fact contemplate the sign entire program are supposed be paid by the utilities and as the eleventh circuit held in alabama power in fact the department or g the nuclear waste fund the monies that come that are applied to this program cannot be used to pay any damages all the damages are being paid out of the judgment fine they're not being paid out of any fund that has anything to do with this program it doesn't appear that congress even contemplated the possibility of damages claims therefore there wasn't any