govern there was no ambiguity and that the plaintive explicitly argued that he was not required to litigate liability in the district court that is not the case here and there's no it already for the proposition that retention out of the ministry for work was not a bar to ask to see initiating a civil action in district court this robin that the th circuit said that if the plaintiff in that case loses his federal court suit then that point of likely would have to give back the award that was received during the administrative adjudication do you agree that mr farrar will have to give back his entire award that he has received if he loses his civil suit to the district court yet that roger we're not arguing that mr arar would not be required to return to that m  and why the government didn't become entitled to that money the moment that he filed this civil suit which could be viewed as a rejection of the  adjudication i'm not saying that he would necessarily have to write them a check but if the government were to bring their own suit to recoup that money today tell me why the government shouldn't win that suit immediately file their own suit or counter claim to his suit and is entitled to get that money back immediately because he rejected that money by filing this  temporal question about when the court actually renders the award at the counter claim and doesn't have to wait till the end of the suit for the claim itself and the counter claim i don't have an accord to work any of that out my mind but i take it that the counterclaim is there as an opportunity for the government about which is so a counterclaims one possibility the mass massengill it self contemplated and you could also contemplate a scenario in which the government would adopt some sort of regulatory apparatus regulations or something that would provide for you know one and a requirement for a party who brings a suit to put as he said put money in escrow or i don't know exactly how they would work it out but in theory the government could adopt a regulatory regime that addressed some of the issues that are in play here and i just didn't know whether you'd given any thought to in your case i know that you're arguing it in your capacity as court appointed meekest but have you given thought to whether that kind of regulatory apparatus would be something that's within the government's authority to do fall the commission extended the time from sixty to one hundred and twenty days and they specifically noted in the preamble that change was made because the commission believes quote that agency should not be required to provide relief before the exp actually ordered relief provided within sixty days i'm not sure why that is the case i think the government could have certainly i think that i'm i'm out of time i complete the drive i think the agency could have already on the books so we can witness the government about the way this works in operation too but to the extent that you're aware of and have given thought to it can what happens in a situation in which what would happen in a situation in which the award has been entered so that we know how much is owned but then there is no actual payment of the award within the ninety dollars day period and then but some but at some point there before the one hundred within one hundred and twenty neighborhood sorry and then but at the some point before the ninety day period the suit was brought and then what how did that play out i'm not sure in practice the regulations certainly contemplates in the not in the notes to the regulatory change certainly indicate that the changes made to protect agencies so i would assume that in that scenario the agency  would not make that payment and the case that precede and district court as we are here my fellow so civil servant actually stated in their brief that it's not quite as simple as counter claiming and where i think that lies is that there is a jurisdictional issue with the t if the rule if the rule were two issues that provided that the district court has the power to require the parties to stipulate to a counter claim being remanded to the federal court of planes as as a result of a trial that would be entirely consistent with massengill circuits precedents and also west st gifts in this where the supreme court recognize the possibility for a case similar to mine arising and you know it simply stuck to the language of the statute to say that we know in the event it does happen  somebody unsatisfied by the amount of money they do have the right to proceed to novo and i just think the court to keep in mind that there are two million employees in the federal government  court and other types of minister for is there anything that the amicus said that you disagree with this other than you know aside from any anything you've already said anything then because said that  you disagree with no not that not that comes to mind i thought well with respect to maybe the counterclaim which i guess i braided that on that point i think you had asked why the government wouldn't have the right to immediately counterclaim i think it's because it is tied to the right of the right of a trial where you know the reason if the result of the trial is is a lower award or no liability then of course you know i don't think anybody would have the right to continue to hold on to something that they had been adjudicated not to have a legal right to i just think it's important to recognize that in judicial proceedings where you have to overcome maybe a motion to dismiss in summary morning your honor some may please the court my name is katherine palmer ball and i represent the appellee in this matters jersey in his official capacity as the administrator of nasa one point i just like to make at the outset kiss steve is the government's position regarding the type of action mr farrar seeks to bring here i would not say that the government has conceded that the acceptance and retention of the administrative remedy preclude him from proceeding in time just to be clear so the practical consequence of that is that i think you have conceded that for purposes of appeal yours you just holding out your ability to make that argument in the district court if there were a remand is that where you're headed with that i think we we would we would not say we have conceded  what my question is this for our purposes as an appellate court your brief comes to us without contesting that proposition so for i don't know if there's any practical distinction between  concession and an assumption as far as we're concerned it seems to me that we're in the same place feasibly the government that we assume for our purposes which is tantamount to a concession that you're not disputing that point now what you may or may not do it out on district court where that under this court's holding in scott that federal employee in the situation at such as mr ferraro who has prevailed at the administrative level and was awarded a remedy  as a choice he can accept that disposition in the remedy or alternatively he can seek to bring a trial to novo in federal court and and having made that election he should have to reject the all aspects of the administrative proceeding including the remedy in order to proceed and part of the reason for that is that you know as i think the court has hinted at in these cases that  they can take some time and that those remedies become more difficult to unwind with the passage of time and so to save save it the way to go about this for the end of a case through or through a counterclaim it really should be something that is decided at the beginning and up front if it unless we are inventing such a one some sort of equitable grounds i don't see a basis for that in the statute can you can you direct me to some language in any of the operative statutes that would require this procedure the issues it doesn't say anything about scott did not face the precise issue presented here but i think it very much follows from scott and in this the court's language and scott that you know employee has a choice to either referenced perhaps it was not the that is not what happened in this case in this case that the commission order did require that agency to comply within sixty days in the government could have asked for sorry consideration of that right right and the government did not seek reconsideration of that order in this case so so mean the e e o c is obviously we should presume there where their own regulations the regulation says ordinarily you have one hundred and twenty days unless the agency orders otherwise unless we order or otherwise for the ever reason in their wisdom the sea made the the award payable in sixty days here meaning basically the to the extent that that nasa's in a conundrum it's in the conundrum because the e e o c decided for whatever reason that the award should be paid sooner than one hundred and twenty dollars days i mean that's that's that sounds like either the rule contemplated that that could happen in i don't see that the concept that it would it would not be fair for to litigate a new the same determination while while maintaining the benefits of the prior decision that you are seeking stepped away from one the one thing about the fall about this is that it seems like the whole predicate of having this rule the regulation adopted to give the government time the idea is one expand the window so that the government can know before it has to pay up whether they the complaining party is going to bring a suit if the whole point of that was allowed to because the government to make an intelligent decision about whether to pay that seems to presume that there is no automatic entitlement automatic requirement to disgorge by filing suit because if there were then they were given and there wouldn't have been any reason to have the extended time window comply with the sea order and did so and it did not have you know the opportunity that's the factual circumstances of this case it has  it argument in any reason why i should not treat that as a forfeited argument your honor i think we did we did say use language in our brief such that was would be fundamentally unfair to to proceed in that manner and to the extent you know that the court use that as encapsulating  regulation how they treat different aspects of relief and the regulation does seem to so you take into account the same concern that nasa has put forth here about when when it comes to a monetary remedy you know once once the monetary remedy changes hands it can be difficult to unwind that and so it affords the agency the ability to delay the payment in under these circumstances where re consideration is permitted and i think the same principles could could be drawn here where did seem significant in that the agency didn't avail itself of its of its right to seek re consideration i mean if anything the equities are against the government here because you didn't seek to use all the remedies such you had before the agency before  agency did not seek reconsideration that's correct your honor but then in the summer when so that would seem to be that if you had an opportunity to seek relief from having to pay out the money and you didn't and then you come here in you say the worst this is all unfair but you sat on your rights below that would seem to counsel against  of any equitable argument you can make before us i think the government's position is that mr for a reset everything when he when he saw the civil action to know and i see that i'm out of time  happy to answer any further questions but if the panel doesn't have any and we would request i have i have one i have one quick question which is how does how would this play out for non monetary really so for example if they're actually from the nature of  reinstatement or something it's i don't know how you describe your reinstatement and if the person's back on the job but there's some overarching principle that says you have to disgorge what does that mean for non monetary equitable forms of relief that might be bound up into the award that an agency that the c makes yes you're on i think it does become more difficult question when you consider different aspects of relief the the rule that the government is advocating is that an individual would have to foreswear all facets of of the relief awarded i think the the e e o c regulation that the court threw the parties attention to last could construct a regulatory regime to take account to be but if there is some antecedent principle that's supposed to tell us that there's naturally an obligation to put yourself back to the position you were in before it's just not entirely clear to me how that works out with non monetary really i think under the under the rule that the government advocates it would have to be that you reject all aspects of administrative remedy in order to challenge them you know you well you under the rule you adopt it's not that you rejected you would you would have another you know that there was a problem with the rich was accepting that it's that you think the problem is that having accepted it you have to return it right that's that's what i thought your position was and then and then it becomes a question of how you do that when what you've accepted is not just monetary relief but has other stuff too as to which it's not as easy to contemplate how you return it yes i think you know the questions get more difficult it's done that because it found discrimination and it found that that the employer wrongfully terminated the employee in you believe that if the employee is going to challenge any part of the award damages or attorney's fees or any part of the award and therefore under scott has a secret trial they get the status quo ante of their unlawful action according to the e e o c until the court decides in that the employee gets no to prove liability in you and so our position is that they have to step away from the remedy receives an underlying decision that they're challenging thank you make sure my colleagues on have questions for you on a bottle thank you thank you counsel thank you to all counsel mr robin and you were appointed by the court to support appellate arguments in this matter and the court thanks you and colleagues for your