ultimately i think that the simplest remedy and one that would be sufficient would be for this court to remand this case to the court of federal claims force to two decisions the one being claims transferred back to the court of federal claims for consideration of whether they should proceed the united states would be making a motion to dismiss them and that this court then clarify that if you're going to dismiss any claims then you would have to consider sixteen thirty one of that point i would certainly be you would be arguing that to the court of federal claims though but yes that's not that wouldn't be something for us to decide now on this appeal no ok ok yes sixteen thirty one issue you could vacate and ordered to transfer as to whether you should and then in a brief we discussed two possibilities one would be this court just remanding it back to be just the court a federal claims to make the sixteen thirty one decision somebody has to make it to make the sixteen thirty one decision or alternatively this court could decide it this court often doesn't decide issues in the first instance there isn't a lower court decision on tribes for vide of the services here we're talking about housing we're talking about houses that the tribes had they'd had their expenses for them they provided that service inconsistent with their pay out and of the contract and they received the funds from the united states and we were still in this hypothetical world where we concluded that our mandate in the twenty seventeen decision was overly broad and so therefore maybe there's a contract claim that needs to be heard but i'm trying to understand what is the theory for why a breach of contract claim would still be viable in light of what we said two years ago that the now has to act itself is not money mandating and you're telling me you have these one page agreements that are basically calling for the terms of that has to act to be you know executed by the government so what would be the jurisdictional hook for a breach of contract claim as being a claim for money damages when we have already today there's certainly a united states could have a different interface there's a very strong argument that the contracting independent contracts by where the independent breach of trust plane can proceed that they are not within bottom line focus of the brief was that there was no jurisdiction over this complaint that the court of federal claims lack tucker actors diction and so i guess the question would be then your side i can't remember where you the attorney and i will be a target well let me tribes attorney in response in filing the red brief why didn't they explain that they had alternate grounds of jurisdiction beyond the argument that in the house has a money mandating statute i mean that would have been the time to inform the corps that there were also these breach of contract and fiduciary claims and  i would agree with the court that it should have been done but as to whether it had to be when we're dealing with an interlock tory order that did not address those claims either and so our appeal was actually on the interlocutory worded united states her name was that  if you agree with them on the hostage claim the case should be dismissed but the actual argument and the issue was a specific order and that's it and unlike other cases we don't have merger into a judgment or any of those sort of things we send a specific order and that water is solely related to the money mandating issue and to the related issue of whether a claim for illegal exaction requires that a statute be money mandating those were the only two issues that were really in that order that was it was on appeal so the appeal because it was by commission is limited to those issues so it should have been clarified to the court but as far as  the court also has a duty to this is the only issue that's before us is whether to affirm the word reject this order that is in front of us and then to make a decision based upon that and assuming that you find yourself back in colorado before  and certainly with at jurisdictions time the complaint was filed and then those are the you just said certainly and i need to hear because because wife because right now assume for the moment i think that your position runs right into the teeth that the tenth circuit and that that is not an issue that we would decide on a six hundred thirty one standard because the question is whether we had jurisdiction at the time and we had jurisdiction at the time that the case was filed so this court would be remanded to or send the case to the those particular appropriation years from which you you argue you were had money funding unfairly taken from you and if those residences are open long exhausted then there's really completely unusual circumstance it wasn't based on like a legal theory well ok i've got sherry but the what we have as i understand the tenth circuit decision is is the tribes up spent money or they complained of the the government took my exacted money via a downward adjustment from the tribes subsequent grants and the words we have been i've given money in the future if you don't have that money of course you can spend it at have spent and they were entitled to keep ultimately to revive everything they've said what they're really saying is not that they have the money that was recap they had the money that was overpaid and they may very well have spent that and this is what they said from the beginning for example a complaint that paragraph twenty eight says i had no lawful authority to recapture grant justing future gramp allocations again they're talking about the future you know let me two in two thousand and twelve judge and judge we set credited all this saying that the governor to recapture the money through the offset of overpayments against under payments and through the reduction of subsequent years grants this court then following all that state of affairs said in its two thousand a review we had to prove a number of things first of all there was a controlling question a second or two for and it was it within the scope then when you agree that in the interest of justice we should send this back to colorado no at three things first of all it said that the only remedy there could be was a specific the specific relieved order that specific funds that were recaptured for example two thousand a fiscal year fines two thousand nine fiscal year f holding of the court of appeal saying unless you can demonstrate that there are money there are funds available for the particular fiscal year that you're interested in no word can be made here you're arguing that we should not transfer because they may be faced with a net bush only if there were before the billable then it would be in the interest of justice if the money were available yet right right and so first of all they have to have that money set aside the government set aside by stipulation millions of dollars twelve by the parties in this case they agreed that that the only money available from two thousand and eight that was ever recaptured from any of these tribes was i think ninety three thousand dollars from fort berthold i think it was and so the question becomes is there two thousand and eight might here vailable now i focus on the on the year two thousand and eight because in those other proceedings the government filed a declaration at the behest of the district court based on the rematch ructions of the circuit court to describe how much money was available and what fiscal years and what that document concluded was there was about at this point as of february two thousand and eighteen it was about three million dollars left and that was all because it had been ordered to be held here by stipulation subsequently incorporated in order were because in the case of the navajo the court that were to be set aside now to be fair those cases terminated unfair were twenty eighth the government had made payments in advance and so the question should be of what order equitable relief for the code damages and course the a p a precludes that however it could order specific relief that is as the test circuit described the district judge to order that a specific years appropriation to the extent that for a probation was available could be directed to a tribe in whose name those funds had been held or or for whom they are otherwise available so we're saying this case was based on the review of the docket we can truly file all these things the government declared then that as  february twenty third two thousand and eighteen this was a march two thousand eight hundred operation there were only i think it's three point seven million dollars remaining and that was the somme of all the money that had been held for particular tribes just so happens that the government paid those tribes according to a two thousand and fourteen judgment and may have used the money in the withholdings may not have but those those monies may not be released and must be held in the favor of those tribes until the litigation is over or until the district court allows it now they just a court issued a judgment if it were twenty seven to two thousand and nineteen i'm sorry last week saying that the case was terminated so we're now within the appeal period  so what happens to that three point seven million dollars i don't know but only if we're berthold and the definition said it was only two thousand and eight money available in this case according to documentary fifty five stipulated in two thousand and twelve by the parties in this case there's so as we said in our preview here absent any allegation that the money has been aside for that set aside for them then there's does not appear to be interested just because the money that we know that exists is being helped at least currently that was about to go online and the fact that it was going to have to be an extensive trial and our goal was to end litigation so we said a petition on page eleven reversal of the trial court's holding that has money mandating with and this action we or that whether this was a complaint that could properly be brought under the talker act and immediate review will ensure that the court of federal grand claims is the court of proper jurisdiction so it was wide open as to the complete jurisdiction of this court well let's assume that the court didn't know about it didn't consider and therefore didn't evaluate whether there could be a breach of contract claim in breach of a funny agreement that comes from the  exactly this they had to there just to demonstrate to the court that there was a point of law or any point of fact that it overlooked or misapprehend and so they brief this very question to the court and the court rejected that effectively saying we got the point did misapprehend anything and then one and then you the court ordered the mandated issue seven days later which was on january twelfth directing the court i understand but there's we we also this panel this court can conclude that there are some exceptional circumstances here to reconsider that piece of the mandate and realize that there was a mistake made perhaps in that appeal and so that the next question becomes is there an opportunity to send back to the court of federal claims even though the court effect federal claims did what we asked it to do which was dismissed the entire case but maybe cracked that back open and consider the breach of contract quite so what i'm asking you right now is to get to the merits of the breach of contract claim and why wouldn't there be a viable contract in this case given that there is a normal they said such action also counts constitutes a material breach of the plaintiff he will now has the finding agreement my opponent just admitted that what there is is not in there in the record at all and certainly was never brief just how it might create an independent grounds for jurisdiction and  in just make it regulations and laws or whether they are put into a piece of paper reminding the parties which law applies it's the same result either way once the court decided there was no damages but we'll just say that good did we actually decide that all emerged that question to the court in this court in the fire case but that they were not discussed in that water either that it's the that was the order that was on appeal the united states certainly was trying to say well if we win this case this claim we're going to win we win the case but the appeal was limited to the order and the contract and the breach of trust claims were not discussed in that appealed order and unlike other peals that we are then that's what defines pointed out that you know granting interlocutory order appeals is grounded on materially advancing the litigation and i thought the whole premise of the appeal was the possibility of just ending the litigation right now without any further action right which therefore is that i missed on the idea that whether or not money mandating it was the main and only event when it came so if the contract claims aren't in that order the breach of trust claims aren't in that order that being appealed they were just mistaken in thinking oh if we decide this non state issue we're going to decide the case that they were mistaken about that did not discuss the breach of trust claims so that neither none of the parties breached those because those were not part of what we were trying to discuss was this order for it the other thing and one one thing i wanted to  discuss just on the effectiveness of a sending the case to the to colorado is when we talk about having our day in court we don't have to accept the tenth circuit decision this court itself is critical of the tenth circuit judicata from that fire decision and so these plaintiffs have the right to still challenge that decision all the way up through the temp tenth circuit and then the supreme court and so when we make an assumption that the tenth circuit would say you lose that doesn't mean that we don't have the right to to proceed in court and to commit to continue on and alternately challenge that time circuit decision if if it in fact there isn't money available we think there is money available that can be used that the court can fashion a remedy to give these plaintiffs that decision so binding circuit court precedent is irrelevant in determining whether or not to transfer to a court that may have jurisdiction when the binding circuit court present says it doesn't because there's always the chance that you can run it up the flagpole and succeed at the supreme court but if it's not great is to cut out the sixteen thirty one standard is whether there was jurisdiction at the time it was filed and there was that's a sixteen thirty one standard and then the other decisions go through the other court system the district court system and with that we have the right to go through the district court system to to make those issues or present those issues because or really has no money available for free we don't agree with that we believe that the court the district court with full equitable equitable powers can issue a remedy that would be effective to give these tribes the