is can i ask you a hypothetical when so that's in this case your client waited to the end of the state and federal arbitration process nine hundred and eighty three doesn't have any d exhausti so if you are correct does that mean you could have filed this suit even before you had it say even if you want to the state arbitrator best state panel because in act the regulations that provide for how members are selected in it is a little bit interact but but the state following that required an accident understanding your answer to judgement his question i mean just take time for get to statutes for a nd but just a statute says citizens with this qualification get this benefit if if you ask for it you don't get the state asks you ask for the benefit the state says well we don't think you're qualified but you can go this route to show you are no violation you go down the route they still say no good this is you hasn't been discussing this case and not very well equipped to speak until you may but now this topic but i would say that i do think that this actually requires the state to follow the binding arbitration says that arbitration panel decision itself but as i said we were seeking review of the irish really get that require the state to place my client in its location we wanted that to be  reno sheppard act to establish this bending to city program it made a deliberate choice to build in a specific and comprehensive remedy for the vendors who participate in that program and specifically this is if you get a favorable arbitration ruling and jump to the nature in other words comply give it a license to the woman there's no way to enforce that and that's why ninety three is needed what's your response to that but i think that brings up a couple issues some that are unique to this case and others just in general from legal principle so unique to this case is that the state did exercise its right under the a p a to appeal that provision of the panel decision awarding her the location so there were cries of let's yet i was thinking that might is the answer so you get to appeal the federal court stuff is done is there a way to enforce that order once comply and i think it would be through enforcement event here it when the district court denied the state's appeal and affirmed an arbitration panel decision the state placed ms armstrong as the operator affects maybe it may be that they just assume that states would respect these orders but i'm serious answer yeah i think i think this is an interesting question and i think that quite something to enforce or if they're not want to do that you you you you stick with the federal court process in other words you know you have tools and the state that says it's initially going to comply all you need to do if you're in terrorist perspective is reduce it to writing and now you've got a contra i mean what am i missing yeah look i think there are options available to a vendor in this situation what i think we've had a panel order that says you are required to place this vendor in a location and that's all the order says that's the only issue that is addressed by you and you have a state agency that says we are not going to do that they don't appeal so in that situation i think you know if i'm not overstepping here that an action in federal court under the provision of the randall sheppard act that says that the arbitration panel decision is final and binding seeking only prospected injunctive relief for compliance with that order against the state officials in their official capacity would be a at least a colorable claim that a district court issue  order to that effect without violating sovereign immunity principles and you know looking at you know we would be in the ex parte young let's now go to money and all of that st of all do you have a preference or care whether well i think the clearest path is to say that the randall shepard act provides become perhaps of remedy and to limit it to that and so what we would have in that scenario is that the panel can craft relief orders or awards to a vendor and there are some differing views out there among the circuits and even within this circuit about whether that relief can include damages even in the st place under sovereign immunity so if you're asking what the preference would be is that it would be to recognize that the state of michigan has not waived its sovereign immunity from a damages award in the context of randall sheppard act arbitration in fact i believe that issue is presently pending before this court on a case from the state of ohio that was argued in february in front of a different panel but you know putting directly before this court the issue of whether the states that participate in this program add waive their immunity from a damages award what a curiosity what what do you think the source of federal power is  combination of that it does relate to federal property and it does relate to commerce you know we're talking about transactions and vendors you know operating facilities in the federal government's operation of its own propert because they don't have the states to get funding through the act yes they do and what is what is missing from the randall shepard act though is the express waiver language that by participating in the program by being the state agency designated as responsible for administering the program that you have waived your immunity from damages so you know that that's normally a really powerful argument and it is a powerful argument here i'm not sure how that argument works if it's federal property because i would have thought that if it's federal property presumptively the government can do whatever it wants if you want to participate in and government property was a certain licensing program it's not that obvious to me that the same principles behind great reverses ashcroft apply i can kind of understand  regulation comes out of federal property that you still need the gregory versus ashcroft clear statement well to answer that question i don't know in frankly because it was not an issue in this case because the panel did not issue in ms armstrong's bid was state property and the issue is that the state is it ministering to randolph sheppard act program through its agreement with the department of education and it covers federal property and state property so we're talking the state rest areas here you know four or five rest areas and state property there's no claim in this case that these were federal property and that was the source of and two looked at whether states by participating in the randall shepherd program and what i believe was federal property said that it was appropriate for a panel to award damages against a state however sovereign immunity prohibited that award from being enforced in federal court so that was a distinction that the th circuit drew  what's presently being appealed and is going to be looked at again because of some recent you know you know some accommodation supreme court precedent and other circuit decisions pacifically the th circuit finding that the states have not waive d their immunity from damage awards so it here we have a panel but declined to award damages so there is no damage award that the state is contesting but it as far as rationale for upholding the decision i think that plays into it because you look at what the panel could have done or should have done you know the panel you know could very well have you know decided the damages would not be appropriate because they were going to be too speculative in the st place and in any event a did you know the court has ruled in a federal damage award in these circumstances not forcible in federal court so where that gets us back to you know on the you know the crux of the legal arguments here is that the randall shepard act remedies lay out the process for all vendors who participate in this program for all disputes that they have with the state agency it is on its face comprehensive and that brings us within that sort of supreme court see clamors smith rancho this court's diaz decision from two thousand and thirteen which has its own two part test the comprehensiveness of the statutory remedy the fact that it's more restrictive than one thousand nine hundred and three so it falls pretty squarely within that as being on par or at least analogous to those other statutory schemes where the courts have said they are comprehensive enough that the plaintiffs cannot use one thousand nine hundred and three to separately enforce their rights under that statute and again whether there is a separate in foresman mechanism for a vendor who is dealing with a state agency that has simply refused to comply with an award on a on a prospect of injunctive basis i think is separate from the st question of whether the randall shepard act is in fact the expression of congressional intent as being comprehensive and i think the answer that question is that it is comprehensive and it is in fact the expression of congress is intent here that it provides the exclusive remedy and if we had to get to the nd question you know i believe i've it least painted one  vendor can do in that instance it again is not at issue here because the state did appeal the panel's decision the state lost that appeal in front of the district court and when that happened the state placed ms armstrong in the location complied with the panel's order and that was i think a year and a half ago and that is just no longer at issue in this case on the issue of whether it was appropriate to deny damages at the hearing i think the panel's decision satisfies the a p a standard is provides satisfactory explanation of why they denied damages they believed it was too speculative to go into all the different variables that could be in play when you're comparing income over a period of years to what it could have been and they explained that in their decision they explained it separate private judicial worth a mechanism that in effect replaces nine hundred and eighty three dollars maybe more restrictive but it allows an individual to go into court to just bring a civil action against the state or local government or it vendor decided he was going to retire so it was a convenient solution giving the president in to challenge i mean it seems to me that since the state state voluntarily complied you you're the state has never given any any indication in this case that it wasn't going to comply with that order outside the context of the a p it granted you so it seems to me if there was a