disability based on the merger and the not existence of the bank as a bank actually there were two so the bank filed a complaint in which it asked for two forms of relief one was the correction of the  that we feel would lead to the conclusion that there had been an overpayment which then leads to our second form of relief which is a refund of the open what the court i think was addressing was the court was the bank's correction remedy in which it said that because the bank no longer functions as a bank the that form of relief would be it would be moot right and i think that's right if this is a refund claim that bottom said over and over where where you have at least some it if it's riff there is some value to a particular form of relief then it's not moot how can it be said there is no value a finding that there has been an overture ok so let's say the mood in this ruling was wrong that gets us into the seven o two question about whether a refund claim is a claim for money damages exactly because that's another not a form of substitute relief we're asking for the thing itself just as in bowen in bowen the could they the state asked for a reconsideration of the of the of the i think them the medicaid department's assessments and then a refund of the money here were asking for a reassessment of the camels rating and then a refund so what were you think money well in it money damages well defined as on your view is there anything that is properly classified as money damages and if so what is that thing it would be money asked for as a substitute for a wrong instead of instead of if you have a statute that says you're owed money and you ask for that money so so if i mean if you're in a car accident and you get injured  someone writes you a check for twenty thousand dollars because of your injury what what you're getting is a substitute for the the the injury of suffered but if there was a statute that said if someone injures you you get x number of dollars and you ask for those dollars that's what that's the very thing that you're asking for and that's why again if you look at boeing that's precisely what the court said just asking for money is not money damages seems i think that i guess philosophically one might say it seems like a conundrum but legally speaking is according to bowen and numerous other cases asking for money is not money damages if the money this issue is discussed and we're we believe we fit into the category of asking for the very thing that that that's provided in the law what about seven o four and shew so congress an adequate alternative state cause of action for illegal exemption therefore they've got an adequate remedy but when you look at it illegal exaction is not a remedy legal exaction is a cause of action and in fact it's a cause of action that aspers just the exactly the same thing as our a p a cause of action which is a refund of the money bill the statute seven zero four refers to remedies not causes of action right so not just the cause of action you could have multiple causes of action seeking the same remedy and there's not that's not a problem if you look at that little stat we cited and i believe it's a no twenty in that case where the court i think we also made the same mistake that the f d a sea did because of waiting cause of action with a with a remedy and we called out the telecare case in a footnote said we think it was it's can conflict with authority said upon review i think that that's wrong in telecare they were actually seeking two different remedies so there was an injunction remedy and and a monetary  the opening refitting team so this issue was inserted into this appeal not by the f b i c but rather by the builders bank not critically critically builders also made the following admission and i'd like to get to a point that counsel was addressing near the end of his presentation because in the bowen case the supreme court made clear that if you have a talk or act claim you don't have an i'm referring specifically to page nine zero four footnote thirty nine in which the supreme court's that as follows litigation in the claims court can offer precisely the kind of special and adequate review procedures tailored to fit this latter situation the tucker act the former now the fact that here a talker record claim can be brought in the district court because of the f b i seize soon be sued  really comes up at this point is whether the request by the builders to say ok made a call but now we can just go back to the district court and we assert oral turner claims well the answer is no it can't you're under the time to come forward with a cause of action as builders itself admits was at the pleading stage it was required to establish court action it here instead of its false arrest claim for which will act an element just like the tumor case where in the trial court the plaintiff played the interest of section five ten point this court said even though your complain included all the facts necessary for the proper risk of section five of two a one b claim you didn't raise that in response to a summary judgment you can't bring it up here for the first time and perhaps most closely on point united central bank case because it included also a motion to dismiss as this case does and that case in the district court the plaintiff pled instance or the prosecutor breach of contract claim court held that claim was firing and not until the plates of as appellant arrived in this court they argue that well the same facts support a conversion claim this court said too late that there have been no arguments made or suggested by the other side that they're entitled to play never reviewed clearly they would not be it has not been suggested that there were any just exceptional circumstances here were substantial rights affected as this court said in the jackson case quote to reverse the district court on the grounds not presented to it would undermine the essential functions of the district court  case is for the first time for the first time a new issue was raised in reply part and of course the f b i see move to strike the reply brief but we were unsuccessful ultimately that new issue the issue that rather than capital adequacy which had been the only element of a campus reading that had been challenged up until the reply brief was filed in this court rather than capital adequacy we were told for the first time the bank is now challenging only the other factors only the nine capital adequacy and based on that had this court decided to remain on the case to the district court to determine whether that was true or so once again we have builders in front of this court seeing for the first time they have a new theory a new argument to try to extend this litigation and the f b i seems to us it is too late in time for that albany gauge must come to an end at some point this medication should end here the only thing that i would say about closely resembles the facts in our case what was involved here is that a military veteran had originally received an honorable discharge and he brought an a p a claim seeking to have the honorable discharge corrected  correction remedy to a disability discharge and why did he want to do that where the court said his primary purpose was attaining the additional benefits that would come from such a discharge and so the court said he was seeking money damages he had no a p a claim so to hear your honour's and i wish you had any questions i have nothing further at this time for the court thank you thank you mr brooks it's gross the reason that was offered was to point out to the court that even though the court had dismissed the case with prejudice we filed a motion to reconsider pointing out that the court had dismissed the case with prejudice but that there was another there's still even another cause of action this conceivable we didn't we didn't have to talk about a legal exa it all we just used it to point out to them that there is the case shouldn't have been dismissed with prejudice because there are still other causes of action out there additionally the arguments that counsel just made were not raised below that they weren't passed upon by the court and they even admit that arguments that aren't raised below are waived and there's no prejudice to them they can raise these arguments about cause of action that they don't their argument by the way there are two new arguments they've they abandoned the district court opinion they didn't they just argument without having raised it below they even admit that we didn't raise it they say well there are exceptions because if there are some extraordinary circumstances to that advance justice what would be an injustice here is to is to hold that that's the basis for dismissing this case when they can raise those arguments about cause of action which by the way is a completely different issue than subject managers stiction they can raise those below there's nothing to prevent them from raising any theory that they want as to why this this case should be dismissed but they never talked about the ones that you just talked about and i believe that ultimately the two arguments that they did raise after abandoning the district court opinion are unavailing and we've talked about some four but i did want to address before i leave the seventeen a three issue because the  court's alternative ruling was that well they're not the real party in interest but i think it's just plain from the the statutory language of seven hundred three seven hundred eighty three for bid a  dismissal at all if unless you've had an opportunity for the real party and interest even if builders bank isn't the real party of interest you have to have you have to give the real party in interest which would be i presume the l l see that that the bank merged with the opportunity to join substitute or ratify it's the court never provided us with the opportunity i raised that in our motion to reconsider and said i don't understand how you how this case can be dismissed on real party nearest the buyer of these assets ever complained nobody wanted but lacked some opportunity to introduce litigation it was never given the chance it certainly has a chance i'm just asking if it's complaint it has not thank you