please the court my name is maggie monahan on behalf of the appellate mr chen yeah this court has asked the parties to address whether this court has jurisdiction over mr chen young's appeal but both parties agree after the supreme court's will what claims you're raising that you didn't have an opportunity to race before the im s p p that the issue is that in perry at the supreme court my question that wasn't my question you understand that my question is what issues did you not read what usually you writings that you didn't have an opportunity to raise before the it's p p i stated impact of perry the and waiver because it looked at mr jim settlement agreement and at the measured to dismiss stage when determining the possibility of parties claims that is improper because it looks at facts and circumstances outside of the complaint which a party is not required to preemptively address but the court the but what we have the force now is the third district court so i think the question still is of the small to two claims that are out there what happens to them though so we argue that they should jurisdiction because the court found that his case was not a mixed case she wanted to go back to the district court yes ma'am so we would for a scantron what new  evidence or information before the district court salary twenty thirty the claims would be the claims that he brought in that barred district court action action this case was dismissed for lack of subject matter jurisdiction which is not a decision on the merits and then the second district court action was dismissed for lack of jurisdiction as well and both of those this message is for lack of subject matter jurisdiction are not decisions on the merits such that wretch judicata what attach in addition we would respectfully submit that the lower court in this case and the decisions of the first two district courts are improper because they look to the facts surrounding mr chen young salmen agreement and his settlement agreement looking at the settlement agreement necessarily requires consideration of the affirmative defen waiver and release and both of those require the court look to be outside of the facts that are presented in the settlement agreement or excuse me outside of the facts that are submitted in the light which is  seven claim that directive jurisdiction was based off a fact that the state court could not consider the title sat and claim and so because that is a jurisdictional through times i'm trying to understand what there is left to be that hasn't been addressed so we would respectfully submit that the court not if the district courts we would respectfully argue that when the court determined that it lacked subject matter jurisdiction over the employment discrimination claims because those are necessary for a mixed case if some of the case goes back whether some of these particular climbs ephemerality for example whether we can dispose of those nails so to tell me why we can't those are the only occasion she is one of so we would argue that they should all go back because the course itself as a whole however if the court decides that it is it should parse our position would be that claims that were dismissed by the lower courts for lack of subject matter just section those should be the ones that are of rain man is if even if there were alternative rails basing it in part on what your subject matter jurisdiction solution to require that we go back  i see my time least for the please respond to this question thank you so all in that case we would argue because the court first found that it lacked subject matter jurisdiction is should not have considered it claims further and that any analysis should not have been down on the grounds for so you cannot make alternative findings when one is true to true that would be a position yet do you have any authority for that so the argument would be if a court last subject matter jurisdiction it should not consider my question is a little more specific i cannot provide you case ma'am thank you thank you same facts regarding the army's terminations of him for misconduct eight years ago and the settlement agreement that he entered into with the army relinquishing all of these clients because this action merely constitutes the third time that mr cheney has asserted all the same allegations was the title seven so it says after after the district court dismisses all the rest of the claims for and told the six grounds the court continued and said to me i however does address those claims under title seven of the civil rights act of one nine hundred sixty four and age discrimination in employment act and it appears from the facts played that chen young wants to reinstate all of his claims previously result by the settlement agreement and so it's only the claims arising out of the  or i really do believe that it's only addressing the title sudden claims on the age discrimination in employment claims because the court first parsed out and said all the remainder of these claims are so threadbare that they don't stated that they don't state a claim the only p properly decided that its own prior decision that the settlement agreement was valid has rested in fact and for that reason we move to dismiss not only in the district court removed to dismiss not only on russia to the grounds because the district of properly decided that it rested its own decision precluded that decision additionally because mr cheney had brought all of us title seven claims to the m s p in twenty eleven and then release all of those claims and then waited a few years and then filed a petition for enforcement he never exhausted his title seven claims and never exhausted them through the m s p and is out of time to do so now plaintiffs title seven claims because they have not exhausted them through the m s p and he was out of time to do so he can't bring those claims again now because he's still out of time to do so he still has an exhausted claims and then seven months later well beyond the period for any appeal then he brought this petition for enforcement of the settlement agreement at which point at which point because the m s p determined  complied with all of the terms he could appeal that to the federal circuit so he could only have so he could only have appealed to force oh the military to live up to its part of the just missing the discrimination claims when the m s p be dismissed the discrimination claims pursuant to the settlement agreement had he timely appealed that decision at that time he could have challenge to not only the breach of the settlement agreement or as he's arguing now rescission of the settlement agreement tired because it's because he asserts that it was based on course and he could have made that claim and if the court determines what do you  i thought they were that's what makes this index case that they were a part of he is claims against the military as a whole that was as a regional claim and then he entered into a settlement agreement disposing of those claims and then settled those claims in the s p v dismissed the title seven claims and then seven months later well beyond the time period to appeal the decision either to the federal circuit or to the district court whichever would be the appropriate avenue them to comply with the settlement agreement so he would not have had any post candidates prepare his discrimination no because he may because he waited too long to had the district court somebody brings the title seven claim and it's resolved on the settlement agreement and the case is dismissed and then the party asserts that the that the government breached the settlement agreement you bring in new a new cause of action regarding that settlement a breach of the settlement agreement but at the end of the day all the court could do is enforce the terms of the settlement agreement the answer is not that the party gets to reopen their title citing claims potentially years after after that case it's been dismissed and similarly here the m s p be dismissed the title seven claims pursuant to the settlement agreement and then months later well after the time period for our argument there is that sovereign immunity is different than a typical jurisdictional argument and that should still be an to entitled to rest or to kind of excuse me  and should still be entitled to roast judicata fact his the entire purpose of sovereign immunity is to avoid this type of situation where the plaintiff is just continually bringing this same meritless cause of action because the court like subject matter jurisdiction on the basis of sovereign immunity unlike typical jurisdictional theories sovereign immunity is a sovereign immunity when the federal court determines that it lacks federal sovereign immunity for that federal sovereign immunity for clues to claim it's a decision that no court could consider that claim and as such it should be entitled to arrest you to cut a fact but even if it's not entitled to arrest you to cut a fact it should still be entitled to collateral estoppel effect because at the very least the court has already is an issue that is also present in the current action would entitle the court to to dismiss those claims further lack of jurisdiction or more specifically in the district of maryland case for an reconsideration the kora hold on those grounds and not on the on the other grounds regarding an regarding the action being brought in the wrong court at that point the decision was on was on failure to  exhaust rounds which reminds me your honor going back to your prior question regarding whether or not the decision the district of maryland's decision was a tall the six just muzzle zero point your honor to the decision on reconsideration in the district of the the fact that the district of maryland dismissed the action for lack of subject matter jurisdiction for failure to exhaust that minister friend but in that action district of maryland also made that the district court held because cheney and failed to provide any information that might lead to reasonable conclusion that some possible federal action had a crewed on his behalf who or that is claims were exhausted the the action had been dismissed with respect to your question about the breakdown of the claims the answer i would provide is that the court we would respectfully submit that because the judge lee opinion dismiss th hands claims are not barred by lateral softball this is because there was a fundamental change in the law between the earlier district court opinion and at this time that because when the supreme court issued that decision and perry and this court has held previously and columns versus palm creek that when that the doctrine of collateral stop all it does not fly if they span a major change in the the court because the discussions about the exhaustion issue perry changed that a knowledge that when there is allegations of discrimination stand that we really do understand substantive substantive climbs have to change that is correct the title seven law has not changed however the other off issue with respect to the exhaustion issue is affected action to enforce the solomon agreement and the appeal and the before the district court that was not an action to enforce a settlement agreement that was based off of allegations that discrimination claims and then claims along with some other statutory and constitutional claims as well however the issue administrative exhaustion his claims were proper in the district court of maryland because he had not felt so exhaust as admission of remedy is because the m s p b considered the merits of his allegation claims and when it looked at the action to enforce a settlement agreement because those claim  are intertwined the district court for the act there was no evidence that he had exhausted as our call so that's incorrect because the exhaustion occurred when he brought his action to enforce the settlement agreement because us the supreme court held in perry allegations of discrimination go to the merits but the relief for action to enforce a settlement just making sure mark no i was i was going to say i'm happy to answer any further questions arise thank you for your time thank you but we will come down to the great council to proceed directly to the next