at the hospitals afforded its day in court to prove its claims it believes it will prevail based on the evidence but its claims here were prematurely dismissed before any discovery and before any opportunity to present evidence so this appeal is not about who should ultimately win the case on the merits of the hospital's claims instead this appeal addresses the much narrower threshold questions of eleven of the hospital plus the minimal allegations required to state an illegal exaction claim  to the court of claims merely has jurisdiction to hear the hospital's contract claims because the courts in our claims erred by misapplying the standards for dismissing claims of the pleading stage its two orders dismissing all of the hospital's claims should be been dismissed any of the claims on twelve the one grounds for lack of jurisdiction and we would that would not foreclose what is determination that it was would would have been permissible for the court to dismiss on twelve of the six grounds if we found the standards of two of the six to be satisfied isn't that right i don't think that's right the government below argued on the basis of twelve b six but they have not argued on that basis even as an alternative ground on appeal at least design or stand their brief and i would direct the court's attention to the answer that question to the standard of review section of the united states brief which only addressed review for twelve  we have to assume about what as a concrete matter it means for you to say that seem out a recovered money at versus united states there was no payment to the government but to answer your question directly it gets a bit complicated as i understand it the hospital did cut a check for a substantial portion of the exacted money now i believe that check was written out to the state department of homeland security and then the money went to the united states and then for the remaining portion you know i get confused as well and again we don't have a record to fully answer that question but but you know as you alluded to i think some of that money flowed back through the smartlink account but at the least a substantial portion was paid with the hospital writing a check ok thank you united states case with this court said quote chucker act claims must be made from a countries may be made for recovery of money that the government has required to be paid contrary to law and quote all the hospital had to plead is non frivolous allegations that one it paid money at the government's direction not that it paid money directly to the government but that it paid money at the government's direction and number two that the government's direction to pay that money was in violation of  and as far as i can tell it is undisputed that the hospital pled both of those allegations and so it should have been permitted to perceive this claims beyond the pleading stage more specifically as to the the payment elements reasonable and the purpose of the grant was achieved the government of course disagrees on the merits of whether it violated section seven o five c but that's not an issue that goes to the pleadings so the bottom line is because we play each of the elements in a legal action claim it was im proper to dismiss this claim at the pleading stage based on will twelve b six critically the court of claims did not say that any of our allegations were frivolous instead it had two other bases for dismissing our claim but neither it's supported by the law mr st before you leave the illegal exaction issue let me ask you this question i'm struggling with this question that as to w money is in the possession and control of a party such that the money being taken out of that possession isn't exaction suppose for example i get a tax refund from would that be an illegal exaction by the i r s only if the government's recovery of the money was in violation of the statute and you certain contending that it's in violation i would be i  make an argument that that they didn't make a mistake you know that that i did i wasn't titled to the money but nonetheless the money came from the government to me and they're asking for it back it i really but cases are different from my hypothetical of course because there what you're saying is that i would was not required to pay all this tax my state my hypothetical is that this was money that you received and then they requested that you send it back that's not the situation and a request for a refund request and then the two case so i do not know the answer to whether somebody has a property interest and money that the government mistakenly inadvertently paid to them but that does highlight an important distinction and this case this was a penalty that's what we please and that's what the evidence will confirm and so we certainly have an evidence that we certainly have a property interest and the money that we had to pay to the government as a penalty take the flood mitigation wall have as an example the government's work with the hospital to approve the project worksheets it was the government i think the evidence will show that actually requested the flood mitigation well not the hospital the government approved the estimated amount for the mitigation wall it was built it came in substantially under budget and the government still be obligated the entirety of the amount because of the the whole five million dollars of the contract because the government decided to penalize the hospital because i disagreed with some of its practices and how did the contract so that's a penalty that's not the government inadvertently sending money to someone so agreed your case sets up a difficult hypothetical but it certainly distinct from this one are so much easier true enough for twelve the purposes that persons like columbus were intended to be benefited by team is distribution of money to the two critical distinctions are master one here the hospital was legally entitled to benefit once the project work sheets were approved as a matter of federal regulation fema was obligated to transfer that money for the hospitals benefit problem in those cases for the plaintiffs were they were trying to supplant the federal government exclusive regulatory role and go after some other rd party because they were a beneficiary under a statute that's not this type of case party beneficiary claim because that would be essential enough of the choice not to have a private right of action why is that not this because in that context the issue is all about going after some other rd party outside the government and then the plaintiffs claim thirty party rd party beneficiary that's just not the context we have here this is a rd party beneficiary suing the government for the government's own breach of a contract again not trying to supplant the government and forcing regulatory obligations against some other outsider in the world point i'm having trouble understanding how let's just call it the bowmen ouster tucker act you're a stiction could be supported here without our st deciding that been adequate if we assume that the illegal exaction contract claims can go forward on the merits then why is not a perfectly adequate remedy in which case we can stop talking about bo that's for seventy to vote and also required that seven o four have been set aside and what i'm trying to i guess i'm focused on and you don't discuss seven of four at all in your brief and i should say talking about why you think that on the merits the illegal exaction claim fails now i don't think we're talking about a bonus point and if if we have to decide that there's no sustainable contract a question to satisfy itself of its jurisdiction which didn't require it to address matters that don't go to subject matter jurisdiction seven o four is one of those well the adequate remedy is satisfied by the agency's own internal procedures and  you know that would present you still have to show that they were seeking money damages you have to get over that hurdle because what they're seeking here is not substitute release or compensatory relief or suffering or lost they are seeking the very specific entitle looking basis alter the schemas way of doing a calculation that is going to have to do on a regular basis into the future channel and continue to receive those appropriated but but it's actually for me to cover expenses that the that the hospital has already incurred in doing the construction that is the subject went to the district court because the appropriation has expired can you address that point that is certainly premature if you think that the money you say is premature but the problem is what we don't want to have happen is if we should say ok this case both longs in the district court under the a p a and then have the government come into the district court and say oh no you don't and the money is not available because  the appropriation has expired so i'm looking to you for an answer as to the question whether or not that or give money would be something that the government would be free to raise or would of the line this falls on and in your view does it ultimately matter because if we find that it was incorrect on jurisdiction couldn't we just converted to payers had to climb certainly ultimately i don't know that it matters because i think sorry well i was just going to say so so if i understand your position you're saying if the relationship between family and the state is a contract then the dismissal should be if and if any on twelve b six as opposed to twenty one is that that's the position i thought i understood you to to set out and your sponsor to choose is that right o if so for example why would that be true of the rd party beneficiary claim for example of why doesn't that involve a inquiry that goes beyond simply saying that there's no jurisdiction for the court to even consider that claim even though the claim is asserted as a claim within the jurisdiction of the it is a rd party beneficiary we have lots of cases in which we've said the tucker act allows you to make a rd party beneficiary claim even though you weren't the principle contracting party right would be non frivolous are not simply devised for purposes of establishing your right to proceed in that form but the question is given the fact based is something that they need to be able to kick without identifying that if they cannot they don't even know the hospital exists on the day that they entered the c n agreement and how can they possibly enter into the disaster  the restatement context more generally allow the relevant intent to run to a class of beneficiaries rather than one already individually for payment without fema signing off on the project worksheets you know knowledge of how the son just spent and making sure that they're sent in accordance with the provisions of the stafford act so it's not to avoid waste fraud abuse those sorts of things they have a duty to taxpayers to ensure the money is spent appropriately within the court as with the conditions  your honor a few points to pick up where the united states left off i don't think the government can both say that beneficiaries can all seek redress in the district court and then say somehow it would cripple if they pursu beneficiary claims in the court of federal claims secondly the united states has identified multiple areas in which there is a need for evidence cherry development which is fundamentally inconsistent with the twelve b six dismissals so for example united states says one of the questions for rd party beneficiary is whether the hospital reasonably relied on the contract in a reasonable reliance is the quintessential example of something of a fact based question that has to have evidence cherry development we've also pointed out before that the hospital is the only critical care facility in the area and so obviously the party is one of the intended that it would be within the class of beneficiaries especially when the contract repeatedly refers to local hospitals and the government responds in a briefing that  the record doesn't currently support or doesn't prove that the hospital the only critical care facility in that region again simply illustrating that there needs to be factual development before this claim can be decided on the to want to versus martina's case from the federal circuit that was another native american housing case with hud and this court in its initial analysis said you know this clearly seems to be a plaintiff within the class that was supposed to prevail in that argument the pleading stage then certainly they should put that language in these contracts like the united states does and so many other contexts that the government focuses also quite a bit on the previous columbus litigation and the th circuit and i just want to emphasize again those are fundamentally different types of claims the th circuit litigation was about money that was not awarded to the hospital the hospital got an award and they thought they should have been awarded more and they case this is the other end of the spectrum where the money was already awarded that the money came to the hospital but there was an exaction a breach of contract that the hospital had to pay money over to the government off they asked us to pay had to write a check and again the flood wall is a perfect illustration of this but one dollar wall is something as i understand it the theme i wanted so after working directly with the hospital between fema the wall was built sought relief not entirely non contract entirely non contractual there was no breach of contract claim and there was no legal exaction claim and that's an important distinction to make the other case of the united states points to it when they say that  obligation claims are routinely decided in the district court and it's just not true that there are any of the obligation claims based on breaches of contract or legal exaction in fact their lease case the rebuild northwest florida case was a case where the plaintiff expressly disclaimed any contract theory and the district court expressly stated if there had been a contract if there had been a contract claim there would be no jurisdiction and the district court so i'm aware and the govern of no case alleging a breach of contract or a legal exaction for the obligation that's been decided in the district court if we were to decide that the court of federal claims the relief sought before the court of federal claims at least setting aside the illegal exaction for the moment but just the other the other contract you know it's inconsistent with the government if you're wrong on that for purposes of the tucker act then wouldn't that mean that both section seven o two and section seven hundred and four would be satisfied because the fact that it wasn't money money damages and let's assume for the moment there's no difference between monetary relief and money damages so that's another question would that not with that not lead us to conclude that  court maybe monetary relief could be awarded because maybe in the end it's got some other money from some other disaster still sitting around that might be able to to make us whole i think again those things are just too fundamental fundamentally inconsistent propositions and it's especially important here because as you know judge recently stated in a slide well case as this court emphasizing the lummi tribe you know the united states does have a pattern of this sort of traditional ping pong taking and consistence positions and the district court and the court of federal claims are not saying that and opposing counsel here has to bet is that a problem with the united states and sounds like it's set up the same way here in the united states is not willing to say or make a judicial admission or something that was subjected to some sort of just jealous awful that that money would be available if we were kicked over to the district court why wouldn't that money come out of the judgment fund if the judgment were entered in the district court action my understanding from the cases that the government has cited that it can't in the district court a p a cases that as part of the appropriations clause of the constitution precludes that than a non philip's allegation of a contract with the government end quote and that's it that apple has briefed on page thirty five to thirty six and i think we've established here today that the hospital has made a non frivolous allegation of a contract and the government doesn't disagree with