contract and it's that that's our that's our business that's our position he didn't have a contract with the department veteran affairs affairs he had a contract for the department the army william beaumont army medical center that's a contract he had  legal relationship relationship the doctor finally had to say his name for a five or five match with the united states government then that looks maybe like just an employment relationship but if it's two separate relationships with the army now being the employer then maybe you at least have the beginning of an argument that you have a contract with the united states government and like with the army but now well i i i think i have i certainly think i have a was next somehow hired by well i want to engage in these services and exchange however a benefit it was chronologically different he was selected for the resident residency program by for you to establish a restriction which is certain it was on you explain what was it that you regulation or otherwise that that granted d they are three fifty one's actually he's obviously a man of authority there ought to be and there are there has to be i think a presumption of regularity here there has to be the of the the rules are very clear the regulation and the a c g and made policies mediation agreement has its own remedy you can't use that that is the exclusionary rule which keeps out anything that happened in the mediation in the mediation in the trial now judge toronto where my thoughts correct said that they said that that that the agreement is presumed to be money mandated now i think you can distinguish it off base of that you can distinguish it by saying that in that limited case that that turns out to be a trojan horse when you get into the hearing they notify you of one charge they come in to talk about something else and then the foreign you for that you don't have he did he did talk to refire didn't have noticed he did not have  conclude or may not be true maybe it doesn't matter the last two months of the cooling dva they are principally about expectation damages for their career going forward yes or no i think that and i think that's supported by the whether the contractual procedural protections which are called the due process were fine and live with the government yet who say maybe contraction violation but no harm mediate this case that will be on the table but you won't tell anybody automatically is direct paper records and i don't think we have a document indicating that i think you may not know the germination was automatic i think that's enough that's in the regulation and in the statu the attach much i think even without the contract he still would have a right he would still have a that would still be a money mandate a mandating regulation a directive well i guess i'm having trouble trying to see  say you know there are you get these right over there or the due process honesty argument don't forget about the but it's not necessarily incorporated by reference into  i don't think you can incorporate by reference any better than to say guarantee a fair procedures say the due process document remember he had signed a receipt for the due process document some of some weeks at least before you this you're a contractor here i know there's not but this might be surprising for the court to hear because this wasn't explained as clearly as it should have been in our brief but whether or not there was a contract absolutely does not matter the issue in this case should be the starting point is whether a federal employee serving by appointment may challenge is terminations other than as permitted by the civil service reform act will answer that question as a matter of record let me suggest that that's not in fact the question because what he's complaining about is not the terminations of his employment he's complaining about having been kicked out in violation of the contract of the residency program exactly the way he would complain going on in this for if the residency program where claims and i'm not seeing why that second one can be folded into the first which is your i believe a legal answer and of a factual response i'd like to like to discuss them both the legal answer i think is simple the comprehensive nature of the c s r a the attention that it gives throughout to the rights of covered employees and the fact that it does not include them in provisions for administrative and judicial review combined to establish a congressional judgment that those employees should not be able to do man judicial review for the army and the accreditation board if you go on to paragraph sixteen and count two again it's clear that the allegations all all come back to determination for employment same thing with count three same thing with count for u clearly challenging his termination from federal employment and if you look at paragraph twenty four of the complaint goes i saw a sign that the complaint in this extremely confusing area was not written quite the right way and that fire me i mean no that's not right sometimes us there i don't believe there's anything that he could have planted remotely consistent with even the most charitable interpretation of the allegations that we're dealing with now exceptions it seems to me at least i guess i'm curious i thought every one of those cases in every one of those cases in that line of cases the complainant was complaining about what happened to him as an employee his he was fired he was whatever yes and the contract claimed that if not exactly in this complaint seems to me that the sensually in his complaint is not about it's about his determination from residency and roughly speaking doesn't care at all about the last two months of pay from d b f he cares about the next forty years of his medical career i  understand your your honour's view about the significance of the distinction between his relationship with the v a and with the army and i'm not aware of a case that has dealt with this specific contractual situation but i do think that there are several cases from this court that would at a minimum be involved in significant tension with allowing a plaintiff such as dr rafah to achieve this end run to to attempt to characterize federal employees derive their benefits in emoluments of their positions from appointment rather than any contractual or clause like contractual relationship with the government now again it's not the precise factual situation that we're dealing with here employment relationship with the court concluded therefore plaintiff may not face his fury of recovery and contract law since he was a federal employee but think this this this i understand your view your honor i think that decision that's essentially the opposite of what's gone your i would also refer to pounce in the first united states this is for sixty eight federal and it's nine sixty two this is a two thousand and twelve decision of this court and i think this is this is another unemployment if he was there's no dispute that he was hired employed by the federal government there's there's no dispute that he was working for the federal government v a was paying his salary and he was yes he did agreement for purposes that have something to do with the normals going forward consequences being treated fairly in that residency yes and perhaps this is this is a man that will be true even if it were a baylor re precisely factually on point in that they don't involve the identical sort of contractual relationship or employment relationship with somebody hired by one agency and doing work for another agency nevertheless  this i don't believe is in the joint appendix but this is a published opinion by the fifth circuit and this is on the docket in this case this is this opinion is part of the the initial transfer package  if you look at pages two to three of the fifth circuits opinion in this case it if it goes into great detail but two important things number one it describes the extensive due process that medical residents at the army hospital were entitled to and i don't think that that so far he would agree he's not complaining about what they were fighting right now but when he got right and then going on to page three of the fifth circuit opinion they make were judged on every one of the claims but found that that it was improper for the district court to dismiss the contract which by the way one of the district court held that the c s already precluded his contract claim but the fifth circuit were not disagreeing with that held that it was within the court of federal claims jurisdiction to address in first instance but i digress the fifth circuit noted that there are three levels of discipline was disciplinary actions relevant to this case that the army regulations provided for number one program level remediation which the court described as typically lasting about sixty days during which the leadership at the hospital provides additional resources to its residents who are struggling in the residency  program if a residence residence deficiencies persist and you get to the second level of disciplinary action that's probation and then that's followed by terminations and what is is not discussed in the breeze in this case is the fact that dr if i was actually on probation for four for other repeated violations and problems involving patient care that came up over the course of his residency and on page three of the fifth circuit  i'm talking about right now does not relate to whether or not it's a contract i think it's not for the reasons discussed in our brief number one there's there's no plausible our exit allegation of any authority to enter into a contract just assume for the moment that least we're not going to say that you can never ever ever have gotten anything and everything you do for the government is always going to be cover underneath your point so the next question is allegations of of authority on behalf of somebody from the government to enter into the contract and not to think that the trial court correctly found that there were no such allegations here you need as we address in our brief you need the elements of  transcript of it and there was no carriage to take and so it was off the record i said i needed to do some discovery the court said you're not going to get to do it any discovery i need to know is this money do you have a money mad david statute or don't you ok that that was a long term objective of the of discovery now i think probably if i had if i'd had my i don't i don't i don't remember it as i as i stand here today i was trying to cover trying to talk about everything i intended to cover and cover in discovery of it as far as the third party beneficiary issue goes i probably would plead it now a found a contract from just the frequently asked questions about a policy that the government had about medical about reimbursement for dry care services and an application for services under that contract now that they found that to be a contract now what we've got is the is a c d m a requirements and apparently fort bliss saying ok we'll go along with i mean where you beaumont saying we'll go along with that or maybe it was at a higher level that  where the contracts are not necessarily prohibited the long line of cases which maybe was a part start all starting with homes have held that that employees can that that the court of claims can certainly enforce settlement agreement