competent jurisdiction over a contract claim not not a petition for forcing of a of a settlement the terms of a settlement agreement where but the contract issue frankly i just so i can clarify something in response to judge post question why wouldn't you be arguing for issue preclusion on the breach of settlement cycling in the court of federal claims based on what the m s p b did you know assuming you even get there and i think we will have to mean that's good that it wasn't clear in your brief your brief seemed to kind of skate around it we're not we're not taking a position because we don't think that issue is just before the court the federal circuit on this appeal because it's not right i mean the government has i don't know either party will apple constitute an application of this agreement than you could go to the c s c right then you would be limited to that remedy which would be go back to you know him challenging the initial that that you do it with the settlement agreement you do still have to work out a dispute this money mandating to not every contract every settlement is necessarily money mandating and if there were provisions of that other of the agreement that indicated that there would cunningham it's gone to the court of federal claims first and you know prove that there was a breach of the settlement agreement and then was awarded money damages at that point would he be whole would there be any need for mr cunningham to a little past that point aren't we since all of this is a matter of public record now i mean let me put that back into the right i suppose you could still require enforcement of the agreement to ensure that  to voluntarily make the settlement agreement part of the record for of course purposes or is that just a standard term supposed on all settlement agreements you know he he agreed to do that i don't i don't i don't know whether it's  that's what you want to pursue it's not exclusive you didn't have to choose one of the other you know the talkback still provides a remedy for breach of contract damages and you know and we believe that that you know that the case law that supports  jurisdiction we believe correctly analyze that issue and recognize them as the damage to be civil service reform act scheme mirrors that of title seven in there and just like with title seven there's nothing that in the statute that that precludes that cause you're going to lose his private sector job and that is how does that work i'm a former labor lawyer but i've been out of that business for a long time i mean typically if there's a discharge that you find not lawful you're dealing with the same employer so the remedy cut off that pay because you say and you should  plus what you would have made up in the private sector and you were asked about specific performance i'm really curious what the government's position is going to be about whether o p m could be ordered to for example contact the because you watch a job at the federal government as results from a nation and which doesn't have and can't do that so here's a non christian party put in a situation where he's the one who have to come up with the money and and then reopen his case and the litigation takes place is not competent to provide full relief and then this exception section twenty six says under those circumstances there would be no bar to a second action in the second tribunals fix what it done to contact the employer and say we were wrong we were erroneous lee provided that information and it's incorrect what they do it i don't know that you they've action of itself is a serious do not have to go through this litigation again and i think o p m is well aware of it and state and intend to not take that sort of action again and i mean i cannot speak per se for the agency but but that is not you are allowed split your claim if you're pursuing to not distinct forms of relief what mr cunningham is pursuing this relief for the same exact bridge he already received that relief from the m a t v and he chose not to accept it he was offered that only he knew we said in homes about were about seven about how yes homes could bring that claim for breach of the settlement agreement in the court a federal crime now why is this something different not the same a title seven title seven you mean yes you have the e e o c but the case is going to district courts across the country they get appealed to regional circuits across the country title seven was intended to create a unitary executive position by best interest action regulatory authority i'm usually a different question that the two parties briefing on what's the right standard for wrister to conduct is there a disagreement there or do you both agree with each other like for this agreement will be entered into the board's record for purposes of enforcement but he doesn't specifically agree to a consent decree and that but that agreement was entered into the record for the purposes of court important the board entered that into that when he entered that consent decree he certainly chose to bargain for those equitable remedies of the other cities offer he had counsel he presumably knew what run these were available he chose entered into the board record for is an unfortunate situation and but you know mr cunningham agreed to this bargain when he entered and both parties agreed to this bargain it's important to remember that this settlement agreement was entered by two parties mr carty and the government we talked a lot about mr cunningham but the government bargained for this agreement they specifically breached to approve it but people bridge contracts all the time but they're forced you can limit your m b and your what the government agency bargained they did mr cunningham fifty thousand dollars to pretty example there which deals with the federal state law question or isn't it fear to construe the restatement to be applicable to a situation such as ours the restatement should be construed to you made but your relief for one breach of one settlement agreement and he already obtained that relief from them and we have had several discussions about whether or not this court feels that relief was sufficient but whether or not that will leave a sufficient doesn't alter the question that that was the relief the congress provided that was the relief that he elected that was relieve the parties under the bargain for and that was the relief that he would did i just ask you kind of outside question just for my own clarification not dealing with this directly with the facts of this case but in the settlement agreement and this is what wallach and i had raised earlier that there was a scab that subject to law regulation a court order a subpoena or something like that in other words there would be circumstances in which they would accept to the extent disclosure may be required by law to regulation cooking out of court order i'm just wondering what happened in cases of security clearances except trial where you know typically one would think that if you go to a government agency and you ask them a question and it's a common upon them to disclose all the information they have is that what contemplated that other certain regulations that you're aware of that would say notwithstanding anything else you've got to give up this information everything in the file you may not know i just i'm just interested in how the whole school we would have to look more closely into that issue and would be happy to do so at the court's request but as i cannot speak at it's ending right now would twenty eight u s c section fifteen hundred block the complaint filed in the court of federal claims at least until the m s p b proceeding was understand section fifteen hundred said something about when a claim is filed in a court you know basically the same where the same claim or related claim or something like that and you can file another claim in the quarter federal claims related to that one until the first claim in court is completed so then the image for purposes of of this kind of situation we would be c fifteen hundred yes yes but twenty eight u s c fifteen hundred it doesn't bar that second claim from being filed after the first claim is completed and you see what i'm saying i  claims held in light of homes and vendors then that's taken away from him that means he's basically entitled to file in both places on the same day if you want to unless you're telling me twenty eight u s c fifteen hundred block nation wouldn't be barred by so the way which government do you think the government could just avoid this by in every settlement agreement putting in language that says the industry be will be the exclusive forum for any any issue matters with regard to breach of this case do you think that would be appropriate proper smart i think it would certainly be it would certainly could be construed as a smart idea and it certainly in this court recognize that the parties can consent to specific remedy they recognize in homes easington that away your right to damages and certainly we do agree that there's nothing in terms of the actual agreement by the parties here the language of the agreement here saying if thirty six that implicit in this agreement is an agreement to accept the remedies the fourth could offer a specific performance or receipt but you don't cite any legal authority for that proposition you have the moment in this hypothetical world we find jurisdiction we find there's no restricted khana bar to the court of federal claims claims with there be issue preclusion against the government on m s b p s find there was a breach an alternative argument to make but there has not at present i i've personally i did not do one but that you know what that would involve significant legal analysis to determine if there was an issue to be made which which is which was depend i mean i raised initially but the only rub that i could see is whether or not it's really a final decision on the government it was the first of the government and the government really hadn't had an opportunity to appeal it because he w or did whatever it is he dead so i didn't know if that's true calling whether or not the right preclusion is quite potentially could your honor and i would transactional fact not by the release sought in these cases they are the same claims the questions presented in the enforcement action were the same as the questions presented here whether the settlement was violated or hurting him in title to remedy and the would be obtained in this case rescission reinstatement and that's what congress passes in the congress created the extent that there is a problem with that scheme and that's an issue for congress this is the scheme this court in forces that contemplate at the time and that agreement the government contemplated that if it breached it could receive his personnel action you could reinstate it if you prevailed you could get reinstated to all position and receive all the fact that they did not contemplate future damage mr cummings this for private sector pay but that would be an issue to be decided in gratefully work i think we have your position thank you for your indulgence circumstances render a judgment on the contract and they can if you decisions of compliance one of one sort or decision to board and and with respect to the with respect to the the consent district court i mean the c s i raise really a special thing because not only did they create unique remedies but they created institutions to deal with those areas of relief that's different is that not from uk that's more much more of a comprehensive specific detailed scheme that title seven which just relies on the of c class our regular judicial system right so it's not a fear distinction to be drawn it's a distinction although i don't think it's