the d c circuit did in those cases was appropriate for many reasons in indiana michigan the d c circuit interpreted deal we statutory obligation that court was clearly within  to declare what that statute met in response to do you use file agency action claiming that its obligation under the nuclear waste policy act was conditional the d c circuit subsequent  decision or the state's power in forced that prior statutory interpretation in the face of the department of energy's attempt to nullify that interpretation by asserting that any delay but it's decisions both the published decision of the decision to made eight hundred ninety eight made that very clear that the that you to address the question of remedy the nuclear waste policy act yeah jurisdiction saying that that the statutory interpretation which it had set forth would be inconsistent with the view that the department of energy had expressed and  not expressed that view and determined that the unavoidable laced was was inconsistent with the other conditional obligation it in essence would have given up the statutory interpretation and it would have told been the conclusion that the french are no well first of all we don't believe that restitution would be appropriate under this case for a variety of reasons that are outside i think the scope of of any of these cases the contract obligation that was imposed on the utilities was something that they had to sign up their licenses depended on many courts have said that they had no choice but to sign those contracts because without those contracts their nuclear regulatory commission licenses couldn't stand to restitution put in the contract decide what in the contract just wasn't on the table so i think restitution is not not the issue here i think what we have here is the question of whether the statutory obligation is one that is going to stand up how would you be worse off if the d c circuit instead of issuing this specific mandamus directive and simply issued a declaring tory judgement declaring her statutory rights to be what they are and let's assume for the moment the big d c circuit had jurisdiction to do that which the quick to judge do you could presumably plead and the quid pedal claims proceeding how would you be worse off we told you about your statutory obligation i understand but suppose they had simply said you didn't get the message the message again and we are now confident that you will get the message because this is what the statute provides i'm having high come understanding t i think if we had gotten a declaratory judgment that would have been far i think it was perfectly appropriate for the d c circuit seeing what they were faced with to issue that border because they saw i think legitimately saw that the department better view was not paying attention to what they had been told if you would read them and that they didn't need to prohibit the government from making the argument that it should have been would have been sufficient offer that for the d c circuit to order t j and at the end you would argue th written one the way the government would characterize it but a very limited one to enforce their prior decision they gave specific directions to the park even better g m s how to proceed in the it admission case the department of energy didn't do that if you are sitting here and up a petition it comes before your response is before you and you tell them what's what you believe the proper course of action should be and they come back and stick their finger in your eyes or speak i think the court is perfect and entitled to take that action and say look please get our message we told you once and our tell you another time but that's all right if it's within their jurisdiction to do that isn't it meaning and then in the first case to me a power they said those clauses are in the contract the second basements and they gave a partial mandamus they specifically said don't worry about those contracted clauses because one of them is not enforceable you cannot rea contract and limiting the contract so you are having an effect on the contract in order to enforce this type store interpretation my question is whether or not the remedy itself and limited by that as a result of error there be in violation of a statute i think that it's no different than if they had said well we don't really think it's ninety ninety eight i don't care what the statute says i don't care what the d c circuit says we're going to say it's ninet contract the interpretation that they now say is the one that they favor the d c circuit if it had been challenged would have read it at that time and as it did the general electric case was called selectric dish and in the contract with that be beyond their scope of their jurisdiction over that would would you argue conceit that that would be a contract interpretation issue i'd need to know how that would come up before the d c circuit but i really think that did that had that effect as a contract matter but it was in the context of the statutory right away what why are you making the argument and why would we need to decide anything about the jurisdiction off limits of the d c circuit if the mean yankie case and and the question that was posed to was was jurisdiction and we felt we want to listen to the question that was posed to the other point on the our board of the latest laws and there are several one is that was says in the first sentence which deals with failures of form the government has argued that independent of the labor what can't those two sentences can't be independent but even if it were the federal form clause says arising under the contract or under the contract were not out of the contract were breached situation that determination was made  obligated to talk a little bit about your stitching because that is the question that you were asked we also think that the decision below would upset twenty five years of really settling with the asking one question  given the present landscape you have the indiana michigan then you have a mandamus decision that we've been discussing even though you might not agree with them what arguments what arguments do you think the government is legally now able to advance in the court of federal claims leaving aside the decision that's on appeal but if we were just in the court of federal claims and all that was before us was in vienna michigan and the mandamus decision that we've been discussing what arguments he used today the court a federal court the court of federal claims could properly entertain from the government we are in trial almost all the time we have when starting next tuesday we will be talking about acceptance rate we would be talking about damages we talk about offsets the typical things you deal with in advantages case one of the damages so yes states in the city government raise all arguments that might have in it with respect to damages and they do and you know we've been through this many times we know their expert witnesses they know ours we'd like to get beyond that we've now just result some of these issues in the p smug cases that this court decided last in august of two thousand and eight or moving ahead to focusing on what are the damages that we have suffered we are the performing part we as an industry are paying seven hundred fifty billion dollars million dollars a year to the government we've paid over the life of this project twenty billion dollars to the government we are suffering significant damages because the government isn't performing as you know they're not going to be unfortunately performing for a very long time because y mountain has been taken off the table we are the be affected party and her us trying to recover our costs or mitigation cross because we are unable to get out of the contract for the reasons that we talked about to raise that issue if they could one thing with the government could do and they've been able to do it forever and i don't know why they haven't they could go back to the d c circuit and say your honour's you know the writ is no longer appropriate please lift it times have changed we  arguments are different we're asking for reconsideration the d c circuit maintained retain jurisdiction in that case if they have proper jurisdiction or them well the d c circuit believes they have jurisdiction and the government could go back they've not done that instead the government sat by from one thousand from the design of certain one nine hundred ninety nine until they had the opportunity to raise this issue in our case and in january of two thousand and five and let the places they can try to think it applies across the board it's  are currently before this court were parties in their case so i think it you know even if you needed to be a party i think most of them or but you know the government has has options that but they sat by while we litigated these cases and invested lots of money in trying to get a proper result and they didn't do it and now they're trying what the point that they should be an op from trying to amend their complaint alone because of the passage of time and i think they have some obligation no but what legal theory that would make any change that would matter well i think that this court has a discretion in the way it approaches issues and i think when the government sat by and didn't raise this issue for a long time i didn't raise the issue of whether one sex one night or what you think meaning think they had a good argument but they come too long to make it so we could label a good argument not so good anymore because they were slow and great and i think you can waive these  a p a both provide waivers of sovereign immunity in this case section one thousand is very broad it provides a place to go tells you to suit gives you cause of action and if that's not a star immunity you help me understand exactly what happened below my understanding and please correct me if i'm wrong is that the government either moved to amend an answer to pleading to hand or stated royally that the intend to try to amend their answer rock you can go ahead and do it and that's the issue before that right except for the very first part of the way it wasn't about the government seeking to answer this actually started when government can proceed with contractual remedies in the court a federal claims and ultimately before this court and this despite the fact that as this court held in p s e g nuclear there is nothing in the nuclear waste policy act that provides for or deals with damages or presidents when really not when you when you say what the d c circuit did are you talking about the actual mandamus were there are you talking about various sentences in the ground that it is not prepared from a repository but as you know with already to provide stores in the interim and this necessarily means of course that deal we not implement any interpretation of the standard contract that excuses its failure to perform on the grounds only purpose of the writ of mandamus is to control the government's arguments in other proceedings how do you know that that if you in the opinion itself the contractual remedies issue that the d c circuit discusses is geared towards the government's future conduct with regard to the manner in which it is going to deal with these contractors shoes certainly on its face the language is very broad it does not purport to limit whether restitution or damages limitations and so under that school why would you be better off under those circumstances that you are now well and rather we could also argue that the parties had included in the contract a cla that basically dealt with risk shifting that dealt with the possibility that factors outside the control of the parties would cause it to let you know that it's not that the january ninety ninety eight date isn't you know bill we would have to look i think at whether it is that it money and money mandating statute there are all kinds of statutes that contain deadlines that require the government to act by a certain date or within a certain timeframe and there are occasions when the government does not satisfy those deadlines that doesn't mean that there is automatically a monetary ready for the failure to meet that statutory deadline there may be the ability of individuals or entities to sue the government in the an argument in terms of dealing with the contract itself that the clause itself is illegal that would be something that the court of fellow players could review and has done you know the cases for example the jet fuel cases that ultimately came after the circuit to interpret a statute when are they just stand down because that might affect around well and we'll see what it does with the rule i needed a kind of i'm going to write the their contractual agreement what the terms of that contract are matters relating to the performance of that contract interpretation of that contract or properly before her under the top or out before the court or federal planes it  writing on the wall is not very clear to me we all agreed they can interpret the statute when they have to stand down they have to stand down in the government has entered into a something that once it becomes a contractual matter it's also a matter for the quarter federal claims who would interpret the terms of the contract in light of the statutory purposes so how do we what are we going to borrow in the future with contractual interpretation matters damages issues it is for the former federal claims to interpret the clauses in the country to determine whether there's been a breach charging what what parts of breached determine what remedies are available whether restitution or  relationship and the only the obligation of government to accept fuel by a specific date is to those parties that have contracts and not to other parts of the contract that we're not going to do what the statu terms so yes but then what's the status of the teachings expires on that then then we're dealing with a contract and contract performance for the d c circuit to come in fourteen years later and say well one of the terms of your contract were january thirty one nine hundred ninety eight here so in that sense they really just saying can't argue that we avoid liability or not a statute itself that provides whether or not and when my theory damages she made available for poor reading not even the deadline that there could be there is nothing in the statute that  says it isn't carping about when you can get monetary damages are not all they're saying but if this is true is that correct reading them and they mention since it's their reading you have to give credit why is that interfere with contrary to what you see here but by saying that we cannot rely upon the end of a lease pause or have any excuses for providing monetary damages for certain certain periods now don't go anywhere you refer to appallingly long time man i believe you make in twenty seven years these various proceedings have  gate this issue that he had been resolved previously by the court of appeal so the question i have you is this in the face of the why couldn't we just say to late to change now well there is no beast the government has not voluntarily failed to raise these fit the merits of the defense either here or in other cases ten years well this issue will come up before this court in another case called southern nuclear where the trial court found that the government had in fact waived the input awesome in that our hands in that case  that is an appeal pending before the sport and presumably this part will result that there but even if the government has waived the argument in cases that been litigated cases that have been tried there are still a lot other cases that still have to be looked at and there have been no merits or terminations at all and therefore in those cases at least we should be allowed to raise his defense certainly i'm not aware of any case law that provides invited them to raise this issue this was not on the table and judge cycles were show because they finally decided it was time to try again on this issue they were never gives up on issues that any of these cases we see the same issue time and time again there are seventy cases out there you see the same issue seventy times they could raise that issue before two thousand and five they chose not to with respect to the first sentence and therefore will always  whatsoever the deaths were five hundred thousand dollars there was a limit on liability in the contract and the court said no you can't do that i think that would have been a contract issue that would have been  dilemma by taking the approach that we started the discussion with that you need not reach this issue because we're we're not talking about an issue which really even comes with the important place close