intervene in the u s district court lead to the d c circuit opinion and i guess for my part we think it's an important case because of a simple principle that we're borrowing from the stock to sing case in the d c circuit and that that's sort of simple right that the jena six case is an attack cracked this breach of contract and there's a species called breach of settlement agreement when a breach of settlement agreement is a claim is brought against any party they a private party in case and the defendant raises the argument that hey look there's a waiver and there's finality in the settlement agreement this twister circuit the d c circuit said declarations from mr lake and or mr hawkins and had we been able to do that then to track the arbitration would have resulted in a certain damages award we lost that because of in the sense he was running a farm in the eighty's eighty's were tough on farmers operation loans were made of white farmers in the same tell me if i can help because i have some of the same question that john strong but let's assume that we agree with you that that was a breach of the agreement and that the government should have allowed its employees to sign these affidavits and submit them the problem is that that point we're not sure what the claims administrator would have done and you say the program no longer exists in is one alternative here to reconstruct that program my recollection is that in other court of federal claims cases where we've had a similar situation i seem to recall one about a promotion board that we said that the the structure or the original decision making should be reconstructed and that the claims should be submitted that way because it's very hypothetical what we're saying is hypothetically we agree with let's hypothetically say we agree with you that the government breached the agreement the question then becomes what's the relief that you should get as a result of that and i think you is it becomes difficult for the court of federal claims to know what the administrator would have done but who are the briefs and trying to explore with you ways to figure out when you get an agreement the government that it's going to lay down that is his expectation of the bargain that he didn't have to do much because he had actual discrimination demonstrated in his presentation to the  his presentation arbiters no question show demonstrates that discrimination demonstrates the other similar situation farmers who are getting the loans that he wasn't getting and so that's if the remedies are you get the money can title to and then you get the get the attorney's fees this whole thing all these around and around about now the good thing is the consequences of your decision on the important question is that the next person that this happens to when these big picks for siegel cases is that they'll know what to do i didn't know what to do because there was no federal circuit opinion that i found that said what sing a song says and that is case right and that what i take taking jurisdictional at the table but now you have to state it's  he seems to have found in the alternative and that it doesn't matter i don't think whether he was correct or incorrect because his decision we all agree is not reviewable if concludes first point is that the declarations came from federal officials and i'm not surprised but the second he says the final sentence are paid once again for says further the statements in that were rationed which were all the statements that the that two people m i just did just to be clear i mean i had come from as i'm focusing on that same sentence thinking that it was crucial to your argument that you say the lake and hawkins declarations have there have been a breach would have had more information in them than they did so the insufficient specificity specificity of what was actually given in the past to the track being neutral is not a reason to conclude about me for example was that these are the non indian farmers in the area the white farmers who are receiving loans in a bounce that would have helped mr love that no i don't but that's why i said whether or not the claims are but let me understand this when you did being clear he came up with the i've understood the argument here the claim against the government of the not mcafee and dealings to be based on the fact that he got these two jackal ratings from these employees and the government told want to meet with them and finish the declaration so it didn't happen because they got the instructions from the b s a you know these declarations that you got that one signed do not represent the declarations the would have gotten  correct that's why how it's not because i thought i don't know me and i obviously misread the record but i assume you got this declaration and then it was a matter of signing and because the government told them they couldn't sign you had the complete declaration that you you had if the government had breached you would have met with these people and you would have got more information from the affidavits would have been more complete exactly like mr but that declaration themselves because of the this was publicly known this discrimination throughout this period and these were tribal officials and tribal members who knew about the discrimination and they witnessed it and so the whole point here is that that mr  has gotten in a situation where there's an important principle that we've recognized from the sockless incase and if we can just get that principle in the federal circuit applied here and that is that with respect to this position where this legal principle can be adopted by the federal circuit and i just want to close with associate justice really brandeis saying if we don't with we got desire respect for the law we first must make the law respectable and so the point here is that i know this isn't really a lot of work to go through the d c circuit and get to the federal circuit but this is an important principle and the government has argued against that and so we need have to review the substance of the determination in order to grant any sort of relief in order to exercise jurisdiction from there both the statement just that you're on or alluded to earlier with which is this the alternative rationale of the track being neutral is ok putting that the procedural issues aside whether you submitted these declarations i look at the merits of what the content of the decorations and i find that it's insufficient in order to award relief under the terms you seem to be saying that conclude that getting better declaration was not part of what this complaint is saying was made it impossible i think governments directive to is it not if it relates to something at least that happened before the employee became an employee of the government and not if they do not if they have the agreement that's at issue here specifically for flutes federal employees could well be the case in this circumstance the settlement agreement specifically stated that employees of the united states could not participate in the nontraditional going to question whether we should read that it's meaning they can't supply relevant information that's so discovery why would that going to be worth something that the provided in the set of the claims of mr i can't get relevant information from government employees because you're already this is this all comes can i just actually asked the department of interior to a regulation at forty three that are not related to the official business of the department that's excluded for on an otherwise general rule about employees not testifying i mean isn't that of a piece with the kind of general background principle that just talking about that a current employee testifying in his private capacity particularly about things learned as a matter of personal knowledge before he became a federal employee is entitled to testify why would we read the information the declaration from the two federal officials named i think that is a fair reading of that show that the track be neutral look at this is a way to miss this problem here federal police are not even supposed to be involved in this process in the reason for their official not a federal employee at the time you know this i think he i believe so yes so i mean if if mr hawkins is going to declare final declaration saying here's what i knew at that time that these events he could not possibly be testifying in his official capacity because he didn't acquire the knowledge of his official mr like maybe he had a different story on the natura under it to a regulation based on the complaint that we conclude that the government breached the settlement agreement by not permitting the employees to sign declarations and cooperate with the plaintiff's counsel let's assume that then the question becomes what's the remedy and there are i recall claims court decisions where something was supposed to be submitted to a board or i recall one and particular motion for case and i can identify but in which the relief was to reconstitute the board or in this case the claims process and have a decision rendered without the government breach affecting is that a possibility here that the claims process could be constituted for that purpose i don't think that's a possibility or honor because the purpose of the  administrator and make those determinations on its own part of that would be to have the claims court say this is what i would have done if i were the minister and there had been a breach i'm offering you a lesser rascal remedy which would be reconstituted in the claims  happened here if they had been able to get full information from the declarant and submitted those that corporations to the plains of ministry would the relief and grant it or not cooperation by the government employees and he would decide what the relief was that would be appropriate under those circumstances under on drew construct of the settlement i think that would be totally and then hunter we know we're i assume the government's position is and therefore we should automatically give him the p c question i assume you're saying well that just means you should be constituted or do something to you so what's your suggestion if you don't like rights i don't think that i don't think that you can be sure that there's any damages that are available in the event of a breach in this case because those terms that the award of damages are the settlement agreement was given exclusively to the track being neutral  but for the breach the administrator would have a warded some measure of damage some measure of relief under sumption it would be a matter of  any any challenge otherwise on these discrimination claims he did not agree to for any challenge to the government's breach of the settlement agreement there's no provision in this settlement agreement that says all claims ar ising out of this settlement agreement including allegations of breach of the settlement agreement are here by a wave or shall be there's no provision for handling breaches of the settlement agreement the d not allowing the collection of information from these to clarence and the submission of information to the claims in the district at that point you have a choice the choice is either the claims court steps into the shoes government not say he's automatically there for entitled to this two hundred thousand dollars award right no no certainly not much because the government would say that it's up to a claims administrator or someone to make t determination so if that person doesn't exist what are the options it can't be that the only option is to say to that too late we've just say i did this claim to ministry to preceding and so you can't possibly get know one of the reasons why for appeals will harmonize a lot of point like this is so people and their lawyers know what to do and so when i was in the position with mistral that i had the experience of being in the complaint that i'm focused on do specifically left what the nature of the interference and they say because they prevented hawkins and the other gentleman from trust fund in providing evidence on behalf of the box did that go to helping and adding to it modifying the declaration or is there something else that the it well obviously it would have gone to the more detail with respect to the instances as we've listed there are a lot of witnesses to these events but they're a long time ago twenty thirty years ago so if i could i could communicate with them more than it would with more detail with respect to so this wasn't like hidden discrimination this was public discrimination and everyone knew about it an american the ins were happy because american indians were not getting business loans to keep their farms going and white farmers were