the first is that the that the briefing led to a situation where the government has been are you conceded the jurisdiction of the underlying actions reading is that they've read it in session but i fully understand the court will make the determination on that particular issue in what i want to address is that if the court is inclined to agree with what the government has suggested as the appropriate disposition of this case what they've asked to conjunction with that is that this court would require the case of the district court for additional instruction to the district court to go on to dismiss th case based on lack of jurisdiction in the district court of law and that's what i want that's what i want to address i think that if the court does take that position that would be an improper disposition of the case and the reasons there are several good reasons for that one is this court's ruling is in texas health four hundred fifth thirty eight ninety five reason number two was that the case supported the case cited in support of that position the gonzalez case is easily distinguished because in that case the underlying actually in the district court in the district court actually rolled on a motion to dismiss in our situation the violation of the due process clause of the fifth amendment and that as a result of that taking a result of that violation we expect to be able to prove that there were damages but is here i comment that the due process clause is money mandating no proper or on the jurisdiction of the district court of law in terms of the due process clause and and money damages and the government may have been another motion to file but i'm unclear you say you agree that the due process clause or you say the depress process not money mandating yes you agree that there has to be some waiver or sovereign immunity in order to get money damages out of the government that argument has been raised by the government it hasn't been briefed i don't think it's part of the issue before the court but that will have a proper response and we think the response will be successful and essentially consists of the fact that from the inception of this case what my clients wanted to do was utilize every administrative ramsey that was what's the money mandating source for your claim but we worried that there is no money mandating source or statute in this instance well how can you recover them well again your honor that we're placing great reliance on the nice service analysis that the district court or long as jurisdiction to hear a claim for damages based on violation of due process but that sounds as though you're saying the due process clause is the source of your cl theory i mean you've just told me that here your argument is that the due process clause is money mandating here and if that's the theory i mean there has to be some money meaning source why doesn't that belong in the court of federal points you then you might lose but that if we're going to use that label money mandating i have to answer that question by saying that it's not one mandating within the definition of for example fish or greenlee count what's confusing me is that what you seem to be saying is that there isn't a money mandating source and therefore this case should not be heard by the court of federal claims that you'd go back to the district court but  only way you can make that argument is in effect undercutting your entire basis for any claim whatsoever it's like saying no the reason that that the transfer was improper is we don't have a case i understand that's that's the case the government's argued well why why are they wrong this it seems to me we're hearing the same thing from you now i'm not arguing the same thing that the government is arguing i think our events are very simple you're arguing that your claim is based on violation of due process that it's not a taking that's correct and if it's a violation of due process you're arguing that that isn't a simply saying to the extent that you may have been raising or you have raised a claim for damages based on the constitution then we send it back to the district court to the extent the district court may or may not have jurisdiction i think it was more just i think it was more personal it was a reference to it taking so i think that's probably what the ninth circuit had in mind but it wasn't certainly wasn't limited to that it simply said to the extent you break the damage claim based upon a constitutional source well the district court can sort this app and now you seem to be saying that well there is no taking claim that the constitutional sources of due process claim those were contesting the actions of the government and therefore it's not a taking doesn't belong in the court set of clients but doesn't leave you with much if that's your position but i think the point is like to to make a response is i think a close reading of the american authors decision but no circuits it's it's much more precise than pay attention to decisions by our sister circuits as to the jurisdiction of the court of federal lands that's for us to decide and so forget about what the ninth circuit said about this not even clear that they were addressing the issue we're talking about now it's up to us to decide whether the whether the court of federal claims is the right place to bring your claim and in general the rule is if it's a claim for money and it doesn't fall within the ten thousand dollar limit as an alternative position we place that before this court that if the court's decision is that the one district court does not have jurisdiction we have grieved and submitted in or agrees that the case should remain with the court  claims as opposed to being nowhere so i think we think that's what you would want well we have we have addressed that i mean understanding that we we didn't commit to this expecting the court to mediately adopt our argument but alternative what we what we try to do is to leave the door open to have the case not dismissed so that there's no forum anywhere for our plans and in order to do that there would have to be a determination that within the meaning of fischer agreement county we we've we've argued that we believe the case should be sent back to war for the ninth circuit we don't want to leave ourselves in a position where there is no court anywhere to seek a remedy so my understanding or brief in the america this case page twelve the bottom where you say however should the f a a concede liability leaving only the issue of the proper amount of damages or should the court determine that your stiction over the monetary damages sought belongs with a court of federal claims then america after she has properly asserted the takings claim as noted in this first amended complaint yes so that's the alternative  properly improperly a third way to pay for just compensation under the command housetop have we ever argued that what the government did was legal well you can test the argue throughout you maintain that what the government did was all along always argue that it has been an awful and i missed the second part of your question but nonetheless you're asserting at least in this provision in the phrase that test led her to that you've asserted a case for just compensation yes yes and then yes ho heard any indication that they contained anything other than having means under the statutory scheme but you can still have a takings claim that says that the regulation goes too far that for example arguing that while it's lawful under the statute to reach these decisions without a hearing that that kind of regulatory scheme is to direct tony in in in creative taking i don't think it's not that when you're o process which until ready for this morning and look at is what it says on line due process is not that's not true there are cases in which the due process clause has been recognized to be money a commonwealth edison for example the scott you know it may be that when you get to the merits that there is no claim under due process clause but that's the point of fisher fisher says don't confuse jurisdiction in the merits if the if there's a money mandating provision in the due process clause is under some circumstances money mandating it belongs in the court of federal clients what i don't understand is why in heaven's name the government would want these process clause and it recognizes that the due process clause is to some extent money in dating it isn't never money and it despite the fact that there is great language in some cases suggesting that that's the doesn't fisher suggest that these are merits questions rather than jurisdiction of the problem is the problem is if you are successful in treating these as jurisdictional questions those jurisdictional issues are going to be resolved in the district courts and then by the regional circuits and and we're going to have bifurcation of litigation as to whether claims are meritorious some of it some of them characterizes jurisdictional issues will go to the regional circuit some of them characterized as merits questions will come here and it's hard for me to believe that that's what congress intended when it made clear that the claims for money damages are to go to the court of federal clients and i really don't understand why the government as a slightest interest in bifurcating this litigation over the meritorious or non meritorious nature of these claims so that some of the issues go to the the regional circuits and some come here i don't understand had said i'm dismissing for lack of jurisdiction because there's no claim here under the packer act because this is not an illegal exaction claim and the appeal in that case would then what do you mean i mean if if you're if you prevail here in a district court dismisses a claim for lack of jurisdiction on the theory that it's frivolous that appeal goes to the regional circuits does it not so if the transfer was correct and it should be arguably in the court of claims then what do you say and but under fisher we ought to dismiss that here for lack of it belongs in the court of claims yes it's anywhere but under fish err we should still why isn't that but why not i mean the whole idea is to have this court of program sort out these claims make a decision if it decides it wrong we can reverse the court if our claims are supposed to decide whether these claims have merit or don't have merit when they're frivolous or not frivolous you know that's the whole idea of having a specialized court like the court of federal claims to decide these issues but it's too late in dec to say that and  reputable based on you know much longer a status precedent that you can always look at the jurisdiction also we get interpretation of the twenty two itself which which indicates that under the other the other provisions appendix of page eleven this is in the tenth helicopter case it's the reason i mended complaint by february twenty second two thousand and seven and it seems to me there's only violations of due process under amendment five to the united states constitution and therefore any illegal taking so no one hand it's due process on the other hand whether the constitutional provision statute or regulation is part of the last is money mandate if the courts conclusion is that it causes vision several means the money man didn't test the courts shall declare that it has that's the court's reading of that case then i suppose simply looking at a process called will be enough i suppose maybe there may be other clauses of well that might be enough to require a court for time to make a decision our understanding of all outside certainly  damages do not get passengers to do shows but what about the inquiry as to whether or not it can exactly i mean maybe there is an inquiry to be made here or is it your view that because they have what they need to allege that i would think it would have to region of money mandating or not money mandates and then goes to the regional circuits right yes and you want us again we don't argue jurisdiction questions based on what would be most convenient but i anything of that sort all this is all about damages and a claim for damages against the government that's correct that's correct and it doesn't fit within the hole in the commonwealth it isn't for the this is the problem that i have that i'm having and i think the problem that all of the courts that have addressed this and having it's hard to discern what it is that you're actually climbed the language i just read from your amended complaint which in your principal argument you you mention was amended so as to provide this alternative argument correct doesn't seem to be an alternative is the linked in to the intent was to assert to clear understanding that the ninth circuit has distinguish between a takings claim and a due process violation so our intent was to pay  sort of getting rid of all the other allegation what who or what we're getting rid of is the opportunity for the court to send the case back to the district court was well an instruction to dismiss the case certainly that's not the result