and a federal statute so far as anyone knows the statute is constitutional if you read it it says by its own words that it's controlling on the facts of this case and yet the trial court came to the conclusion which it thought was compelled by the kimberly case that the statute just doesn't apply to these facts and since i disagree with that reading of kimberly i'd like to focus today on the difference between the two things that jim really i actually did hold and the way the trial court in my opinion overread the case first kimberly did hold that lippa statute in question obeyed and by reading it that way it's set itself up for what i think was really a false choice which i think went something like this this is a conflict a clear conflict between the statute and a contract one has to get unforced and the other one has to get torn to shreds the one thing we all know from reading the kimberly case is you can't tear the contract to shreds therefore i'm going to tear the statue to shreds and i thought that's the only well i guess the short answer to your question is because they don't have a cause of action quite title they've what they've got is kind of a hybrid they've got a claim that's purely based on contract that says we have this contractual right to force the government to accept our prepayment and then they've got a quiet title and they've started as if they're asking for quite title now for that for the contract claim they've got  you know they've got a cause of action certainly in the contract but there's no you know any time you sue the government for anything you need two things you need a waiver of immunity and you need a claim for relief they've got the claim for relief in the contract immunity twenty eight u s c twenty four ten but that doesn't get them to two a claim for relief to have a claim for relief you've got to you've got to find something to walk somewhere you don't find that in twenty four ten and you know i acknowledge there's a an unfortunate reference and kimberley to idaho state law but you know you've got to you know that's why we cite all those supreme court cases  myers you know what they say is you've got to have it in a federal program the source of laws federal and federal courts certainly can adopt state  law and in fact the way the state of the law is now they should adopt state law unless the unless there's a good reason not to and in you know in nine hundred ninety nine out of thousand quiet title cases there really isn't going to be a good reason not to you know there's just going to be some taxpayer who's made peace with the i r s and he wants a cloud removed from his title you know that the state law works just fine as the rule of decision in most cases but what's missing from those cases and in fact what's missing from kimball foods and clearfield trust in every other case in the history of the republic that ever adopted state law as the federal rule what's missing is the you know eight hundred pound act of congress that we've got in this case let me ask you mr schmidt if you if you're if you prevail how will this play out we would send it back to the district court on the a p a case  g under the a p a is there any reason why that case doesn't take care of the your client's problem as opposed to having to intervene in the other case everything that you could possibly get in that if we were allowed to intervene and all i can say is i hope the truck courts right about that and if you were to write something that says the trial court's right about that i think we would have an easier time with the basic obstacle to us is that you know at bottom with respect to see crest we're trying to collaterally attack a judgment to which we are strangers and although i down the road i'll you know you sort of intervene sounds like the answer to the judge's questions you know with an explanation but i think it's only know if you say you know what i mean i don't have wondered about the intervention but just be case and if that's true whether that means being in a cases and doesn't give you all you need i think the answer to that question is no there aren't different standards i mean certainly there's a different to feel like you know the juror the trial judge was right about that and we really do one is a carbon copy of the other in her words you know i you know what i think you i think i you know i the intervention was kind of a precaution and the appeal from intervention was kind of a caution and the question was you know is there any way in which we're going to be we are going to be viewed as strangers to this judgment and the and rightfully so because they've never been there tennessee has not been interfered with they still get government subsidies and that's why we think this issue is moot both as to the quiet title case in which they didn't try to intervene in a tell after the final judgment was entered in this case and after the property had already been sold to a not profit entity which is providing the same services  only with hide subsidies rather the one with the rural housing subsidies and of course the other broke appellant has no interest in any property here meadowbrook was never any one of government subsidies and so what are they what is this about it's an effort on behalf of the interested people behind these tenants who want to try to get a different panel of  the the action of claiming that our sole remedy was a damage just in the court of claims this court reversed the district court and kimberly instead no you're entitled to quiet your title well with down to the district court the government admitted all the facts that were in the complaint and we moved for judgment on the pleadings which the district court granted to district courts and i don't judge when male judge boyle and now judge brown here in these oregon act even though it has an effect on one of its contracts it doesn't breach the contract but if the government an actual statute which is aimed specifically at reaching into one of this contract and a number of them then it's not a sovereign act and that the government cannot modify those contracts as this court quoted in the in the kimberley case from the united states supreme court the government can't do that and that because too when the government enters into contracts it enters into contracts the same as any private individual when it enters into contracts sure to both  doctrine as a constitutional of wardens thing because otherwise if the government could by statute specifically directed a contract modify those then cases but this is the only quiet title case that's been brought because this is the only case that involves where the government is claiming a lien on our property and the congress has expressly provided for a remedy of  of the overriding interest of the government is that if the government can buy statute directed at the tickler contracts modify them who will contract with the and they and so with the mr shredded in the knowledge i think the courts and the federal courts apply state law in these kinds of causes of action unless there's an overriding federal interest and the overriding federal interest in this case please the court can use men appearing on behalf of the united states we're in kind of a unique position here because we lost the kimberley case and all of the arguments that tenants have raised we raised and successfully either here or in the idaho district court so i'm here today to urge you to affirm judge brown's ruling and there was nothing unlawful about the agreement in principle that the united states entered into  successor i think we were trying to make the best of a situation that we saw it very difficult we had we're literally between a rock and a hard place between kimberly and l f s and took all of the steps that we thought we could take reasonably to protect the tenants and to ensure that the properties would either remain in the five fifteen program or would be then fall under the section eight hundred program so our position is judge brown got it precisely right th was nothing unlawful and that d b s tie in the united states when title the summary judgment relative to the agreement in principle and the denial of the tenant a p a claim unless the court has any other questions i w say any thank you thank you you know here was such a case this would be we would really be in a different posture in our we may not even have an appeal i don't think there's a case ever where someone has said i've got a contract that says something different from what this act of congress says the act of congress is an unconstitutional that applies to the but i've got this contract and i want to specifically enforce i'm the promise see i just that case doesn't exist specific performance and courts have given equitable relief in contract claims that's a really different thing and i just want to stress the difference between the two kinds of remedial schemes i mean for our purposes the real division between remedies has nothing to do with equitable versus legal it has everything to do with substitutionary versus specific now we're talking about what kind of intrusiveness is there going to  the the workings of the political branches how much can a court intrude on the if at all in the discretionary decisions of of of government and for those purposes money has always been thought to be ok it's just tolerated you know in fact there's a statute that has a gives a standing appropriation to pay money judgments it's just a regular thing it's thirty one u s c thirteen zero four something like that but it's the you know whether rest you look at restitution which you know it's called equitable all that means is you know five hundred six hundred years ago when you walked into westminster you would turn left and go to the chancery courts instead of right and going to the you know the king's court doesn't have anything to do with with function what's really important is you know are you telling a government actor what to do from the bench or are you just are you just ordering  and you know for the cause of all the cases we cite and particularly because of the charleston case and the eighth circuit we we think the way that you accommodate the government's need to  assure that it's going to have contracting partners in the future it's need to fulfill its obligations under contracts on the one hand and it's need to solve social problems through congress and through the regulatory agencies  on the other hand is that you know the way you the way it's always been resolved is is money damages and everything that's why every single case the kimberly cites to show that the lip is not a sovereign act in every case that