artery so unreasonable diligence was exercised in pursuit in the rights of the a poet to the very st point the board dismissed the case without a fact finding absence from the texas case these invoices well it's not where this contract you're on or i don't think it's very clear from the record of the board's decision that because of the civil action and stayed to proceed and because he said it would be a conflict and parallel discovery for the civil action so yeah when you read it carefully the board's decision on this case it's not clear that they didn't take you consideration because they say that it's irrelevant what what i perceived or what the public would perceive to be a risk for filing during the understand what you're saying is that there was a fear that there would be additional charges or counterclaims i guess over and above the claims that were being made in the texas litigation correct that wasn't just the fear it was justice lawyers and they gave me that the warning do not file during this civil action we want you to cooperate your client must cooperate in this case it's clear that the situation pages that i am in the appendix it was an have should have read must have done with such a certified claim on the assumption which i think is now in disputed that this contract and indeed maybe even some of these  invoices were part of the texas case the assumption is that they would have dismissed the case and the department of justice would have filed additional charges against us for bribery for it saying that the contract proceedings would be a civil action which is what they did with the b p a one but the contracting officer could have maybe i think maybe i think i'm understanding you did say would have in fact ruled on the percent sure and not sure to be honest with you what the the contracting officer would have done or not done i think that they would have just sent it straight to the department of justice who said she's filed  yeah but it would have caused more would have compound more and then we would have been compromising the investigation and the civil action with the parallel discovery for the about well that would mean that that was what the harmony of justice said that we would assess more penalties against you should you file during this civil action so we relied upon the public record relied upon a department of justice because it wasn't something that congress him signed it was signed by james beard and it was put into the civil action in order to coerce coersion the green valley to cooperate and to get to help the department of justice clear the record which they did they sent them bank statements they sent them anything that brought me justice requested was submitted and then there was a cooperation and where the  not maximum feasible diligence i mean it was diligently pursuing to clear the the misinformation and the false information that the army department of defense and the department of justice had about this prospecting applying from the date of the barman as opposed to retrospective accounting for matters that have already taken place well yes but that's not the advice that was given to green valley from captain choice so they relied on that wheth the name of green valley without their knowledge because they do joint venture agreements and they try to get the payments to be submitted to them so it's it was a very tough time a lot of confusion you know go away it was a very unstable situation for the contractor they were afraid three of the military committed suicide and you know it was in the market three military officers committed suicide because they were being investigated for fraud roughly december two thousand and six through december two thousand and twelve and no certified claim was filed in that time frame with respect to equitable tolling we said that the board properly determined that there was no genuine issue of material fact with respect to that submitted to that that the texas litigation really had nothing to do with this contract reviews in voices under this kind yes you are so in connection with that twenty eight j a lot i did go back and review all of the for the briefing before the board to see what representations were or were not made the only thing that was represented before the board was the existence of that district court action and green valley being named as a as a defendant in that action there were no representation from either party either way that sooner or later it would have been revealed that the texas litigation actually involved some of the same subject matter of the claim because the claim wasn't filed in two thousand and ten i can't say for certain but i to a contracting officer statutorily does not have authority to compromise clearly within which that contracting officer suspects fraud so to the extent a certified claim was had been time but what's critical with respect to this appeal is that claim would have been timely filed the government would have been on notice of the claim could have investigated the claim and that timely fashion and green valley would have preserved its right you think it would have been an impact on the texas case i mean i realize it's hypothetical right but i'm just trying to understand the credit situation when her saying that they were threatened not to fire claiming because it could have an impact on the texas education i'm just trying to understand that so the tester the district court litigation in texas in comp that's the primary focus of that texas complaint was another blanket purchase order awarded to palm springs another and that district court action and the invoices that issue in this appeal were part of that action so it was all wrapped up together but again there's nothing in law that would have prevented green valley from timely submitting a certified claim valley not to file it says if you follow certified claim we reserve our right to respond as appropriate which is the government's right so yes theoretically some other amendment to the complaint could have been sought in the district court action but the supreme court nominee tribe has held that fear of consequences or fear of future litigation risk is not sufficient to constitute an extraordinary circumstance and it came to the c e o s attention that the texas case actually did involve this subject matter and therefore by sumption anyway but maybe even it evidently the also held is not sufficient to meet the extent extraordinary circumstances persist perception of the chiller he does not meet that circumstance but importantly on it we have a statute of limitations and we have criteria for equitable tolling because the government has a right to know what claims it faces right witnesses disappear paper disappears if green valley had an valid claim they had an obligation to submit it in a timely fashion they were a kuwaiti government contractor right the government hadn't had a right to know what claims were pending against it in a timely fashion so that it could have investigated it so even if it would have been futile in terms of springs and other entities that were included in the district court action had timely filed claims or certified claims for their invoices up to him surrounding the district court action and had the denial of those invoices to the board and other board actions and once the district court litigation was pending the government sought to stay the board action pending the adjudication of the district court action conceivably had green valley timely filed a certified claim that contract officer either would have denied it or not acted on it in a reasonable time such that it would be a decent amount denial green valley could have proceeded to the board and either the board would have adjudicated it where the parties or the government might have sought to stay the board actually don't know but importantly they green valley would have preserved it's right there is no exception recognized by the supreme court or any authority that we're aware of that would have for a given green valleys failure to a timely filed a claim based for the reasons that they've asserted in this proceeding right fear of which mr kelly refers was not before the board during the summary judgment briefing it was st mentioned by the sic halle on behalf of green valley in her motion for reconsideration of the summary judgment decision it was not attached or in any way presented as competent evidence it was excerpted in her brief in the text narrative of her brief but importantly it i will represent to this court it does not the document as such was never submitted thank you you've got to have you have a rule under three minutes ok one of the things that the army has failed to show that it would be prejudicial to them to hold a statue of limitations and to pay them and it's not burdensome whatsoever to pay these invoices and there was a time when green valley said related claim and it went unanswered in two thousand and seven unanswered in any way by the army so it would be i was that was the well it was it was there are notice she claims that they were never on notice and that it's on it's burdensome but they've never proven that it's burdensome for them to pay these invoices of the work that was done and it was burdensome for the repellant to have to clear their name so through civil action and all of the that the did the diligence that they've exercised in addition cooperating with the former justice to if you want to say that the president says don't cooperate just fi