shout in that sentence is mandatory there's nothing in the next that suggests it has anything other than ordinary mandatory meaning and for that reason the case shall be remembered no question among parties that what what could it what could it right and would that can you can imagine the circumstances under which it would be well if the complaint were amended it's possible i suppose it might not be in the case as it is now i think the proper thing be allowed or not so it's it's in federal court that there was no there was no response of pleading so he didn't need leave of the quarter or the concurrence of the united states to amend that he didn't do it that's correct you know i think that the issue is not it's not so much what would happen on an remain and the question is whether the court is obligated to follow the plain text  transfer statute six in thirty one applies only to cases that are filed in that were so i don't think it applies here even if the court disagrees and thinks that there is a complex i think that the narrow carve out of the main in sixteen  one authorizes a transfer and there's a specific carve out from the union so the you know the extent there is a conflict with allow the case to be transferred at most but that's very different and i think there's again irrational purpose for that because the word excuse me congress wanted to create a system where the case would be channeled to the proper form and would not be and would not be dismissed i'm going to wait a minute wait a minute this doesn't channel the case to a proper form it channels the case to it to a court that has no jurisdiction well it's a proper forum in the sense that it is the forum that congress doesn't need it as a result in any were that result there rather than coming in the federal public space the case get under your theory the case gets remanded to the superior court of the district of columbia correct and why can't the government then remove it again well because presumably it wouldn't want to engage in that kind of society and exercise where it'll have to be removed there's there's no there's nothing that would stop the government from doing that i think that's correct although there is i love the case   and the government has argued this i think the reason for that is as i understand it for purposes of collateral estoppel dismissal for lack of jurisdiction does not have binding effect in another proceeding so i think the state  r so your theory is that by enforcing this statute by giving this court a shall make sure it's going to solicit that in the future the government won't seek to remove cases like this any more it'll just move to dismiss without it community grounds in the spirit court that's right theory right and again i think it's a very low threshold because the question of where the court is not what the court thinks makes the most sense not what even it thinks congress was if a complaint is totally frivolous then you can dismiss it without even deciding jurisdiction and that now healthy i think is another supreme court case balbi hood is the leading case why doesn't that here the superior court clearly has no jurisdiction and the court of claims has already decided that this is not a contract action so no matter which case or which clear on how you think that all of this works if we wrote one hundred page opinion explaining why the government is protected by sovereign immunity here let's just say for the sake of argument in then we ordered to case remained your view is that at the sapir ier court could decide i'm a new whether the government is protected by sovereign immunity and would not be bound by our decision in any chance and could could reach a different conclusion yes and if the state court it say we fine the the united states is protected by sovereign immunity it gets remained to disappear your court disagrees in the government has it gets a judgment against it this type of issue it's not a terribly complicated if we decide an issue of of subject matter jurisdiction that involves like sovereign immunity that essentially is is for naught because it gets sent back to disappear court to decide it again then they can decide it differently and the d c court of appeals could decide it differently so congress intended for the decision  court of appeals to be the to be the ultimate operative decision in that instance rather than ours yes your honor you know i think you know it's really more of what the statute says than necessarily  appropriate when the government successfully asserted its federal sovereign immunity the answer to that question is yes in every case brought against the united states the plaintiff must be able to identify a statutory waiver of the government's sovereign immunity and in this case mr hemmer so claim nor the state court from which this action originated at jurisdiction to entertain this case nevertheless we're arguing over whether one thousand four hundred and forty seven c requires some sort of a different result to remand in the case back to the if we are to take what is it so absurd well if it invites the district court herbs are the state court perhaps not to dismiss and then we have these conflict i mean i know the argument that mr dick made good can you imagine any circumstances under which the superior court would not dismiss the case i mean you don't even think you have if you say if you treasures i think sending sending a case back to a state court that congress explicitly said should be somewhere else is demonstrably at odds with what they intended they intended this kind of case to be brought in the u s protection of a federal form and so and they amended four hundred and forty two specifically so that questions involving federal munity would be resolved once and for all in a federal form so to federal or i would be quite interesting that is congress clearly knows the difference between may and shall perhaps but it also knew how to require the a showing of subject matter jurisdiction before granting the power to remove because that's what it did under one thousand four hundred and forty one it said that you have to have some sort of subject matter jurisdiction before you can remove and they that's not present in four hundred and forty two dollars eyes so they clearly thought about and decided against requiring that sort of showing before the removal can be affected and so both of these both the tucker act and four thousand and forty two a demonstrate that sending this back down to a state court that no one argues has such as subject matter section is a waste of judicial resources imparting resources and it's particularly important here we're talking about an issue of immunity because those votes as the supreme court record nies in secret gillie one of the purposes of immunity is to spare the defendant not only unwarranted liability but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit and this only has the effect of sending it to the federal court and it back down to the state court and perhaps letting it continue on and i would also like to point out that while sovereign immunity may be a fairly straightforward issue in our case it's not always the case that sovereign immunity is so straightforward and if the state court were to say perhaps seven immunity is not there is a waiver in this case and it's allowed to continue well now the case is stuck in state court there is no mechanism for the government to get back to the federal court because about and and specifically amended four thousand and forty two a to ensure that the case that these sorts of offenses are raised and adjudicated in a federal forum and that the next stop if the court if the if the district court concludes that there is no jurisdiction of the court of federal claims is exclusive it doesn't use the words exclusive does that is correct your honor it is a construction  be exclusive in this court considered it that way in greenhill the spellings he cut as there is no other statute that way the government sovereign immunity for a contract claim in excess of ten thousand dollars i raised that because some of the cases that have employed this futility doctrine to say that well yet the statute says shall remain and but we should read you know all of the statutes in the context in in we can dismiss if everything in the context of dismissal is the appropriate remedy they have relied on the fact that well there is another statute that says that the only case you can dumps are the only court you can bring this in is you know this court war or that explicitly read requires dismissal in here you don't have that explicit language why isn't that a problem because the rule of sovereign immunity is that it's effectively no court can hear it unless unless there is a statutory waiver so that is a that is doesn't delineate any other any other court federal or state that that means that you can only go this route and that's how that's how the courts have consistently interpreted this this framework under  and thirty one and saying that the district court shall have jurisdiction the supreme court has upheld the doctrine that that doesn't apply when the complaint is totally frivolous correct shall doesn't apply or is it the same thing true this exactly so help me understand what if any collateral estoppel effect will apply to that rule and already relying upon that aspect of the district courts rule well to the extent that everyone agrees that there is no subject matter jurisdiction here the only import that that would have at this point would go to the question of why you shouldn't transfer the case and under sixteen thirty one dollars if you only transfer if it would be in the interest of justice and where that court has already passed upon this exact question it really isn't in the interest of justice to transfer it and that i think that so the collateral estoppel issue comes into play there and this court said in daniel's  decision whether to dismiss versus remain no i don't believe it is required and we're dealing strictly with the issue of sovereign immunity and the and the remain and i don't i don't believe it the court needs to on but you can have one that if you're on i just want to make sure to direct the court's attention to the previous statute that existed before the current version of court in forty seven c and you can look at that and on page nineteen of the footnote three i think that gives a good example of how congress could have written the statute if it wanted to provide the option to dismiss or remain and so what that statute said before the nine hundred and forty eight dollars amendment is that the courts had the option to quote dismissed the suit or code yes yes i believe it was there was there a notation that said that the changes were stylistic only i'm not aware of of that i don't know if it says that if in the  code it says that that means that the new version of one thousand four hundred and forty seven c is to be construed in the same manner as the old version correct that's what stylistic means