good afternoon your honor slave please the court the governor of this case isn't somewhat simpler than the government makes it out to be and let me tell you why i think that ok at the time that  your client entered into his employment contract the statute provided for conservatorship of institutions that were insolvent and as a general matter when you go into conservat the moment that there was a general repudiation of power and under those circumstances there was a breach of contract clause and so how can there be a takings claim if the breach of contract claim against the estate was preserved well so that there would be two separate claims right if you have a breach of contract claim in a takings came from taking this claim against the government specifically here that the government was explicitly acting as a regulator not a conservative give away d d you agree that the golden parachute provision didn't eliminate your client's breach of contract i think that's right ok so why if that breach of contract claim was preserved is there a picky here i mean there are plenty of cases that say that the fact that the government reaches a contract doesn't lead to a takings continued leads to a bridge collapse i think that's right your arm for that is in the specific contract claim is preserved so why isn't that preserving his remedy what's been taken here how has he been injured who will he's been injured your honor because he hasn't received any of the termination benefits to which he wasn't titled and that was only because the government ordered for the mac not to pay them when it would just die just getting to if i might and is how has he been injured in a taking sense in other words what has been taken from him i mean it when i picked up the briefs a necessity basically freddie mac was ordered to terminate him without cause and number two not to give them his terminations benefits i think breach of contract and i'm trying to think where has there been anything taken in term no contract rights been taking place taken because the colloquy you've had with judge dyke suggests he has the right to breach of contract claim what has been taken here get what i would say is when you put so there are two separate plane turn right then and if you look at there are certain cases that we cite in our brief where the government authorizes a third party to take  contractual interest and that leads to a takings claim and so it's not if again i'm not saying that there is no separate claim against freddie mac for breach of contract with the same time of the government is responsible here if we sue freddie mac you would bet full faith i'm sorry by acting as a regulator not as conservative here that's why you're taking the claim here has nothing to do with the imposition of the conservatorship we don't look for post that were taken suppose we consider this to thirty two separate the findings in two separate cases with two different remedies and so here again well he could potentially sue freddie mac for breach of contract that we do no good because freddie mac would point out the government and say the government ordered us to do it when the government and this is in the in the red ok so when the government in that case just authorized a third party to take a property interest here the government can just authorize it if order in which there would be a sovereign acts to france and possibility   create a defense to a breach of contract right why do you have a takings claim if that's the case because that the british underling breach of contract is because of the government's directive in here we're not aware of any case law taking well because you don't have to enforce the action against freddie mac here we actually had a choice we could sue freddie mac we could sue the government we could sue both not saying we could have a double recovery i don't think that's the case at all but you were here i'll agree to contract out with we did not point out well i think in the interest of patient here was you go after freddie mac and freddie mac points the finger at the government and then we're in a jurisdiction where we can sue the government we have to come to the court of claims to sue the government to take its place so we thought at the end of the day it would just be a longer way of for say what a suit against freddie mac have been brought into not in the court of claims in a different district court perhaps in virginia where freddie macas located but i've seen virginia we would not have been able to bring a taking claim against the government so at the end of the day you know our the way we look at this is our hands are effectively tied the government ordered freddie mac to do something freddie mac comply put mr plays out in the street which had a devastating personal a decide the case and what they're right i think with the really case to say your honor is if there is that the government is acting as a contractual counterparty to a plaintiff and terminates that contract the government is no longer acting as a sovereign it's contractual counterparty is freddie mac so the only way it goes after the government here again we think that's really the party that's responsible because officially this directive is by shorting the takings claim so but what case supports the motion of the government to tell somebody to is not an issue we briefed and we addressed only because it wasn't raised by the government but but again i can tell you that the government did assert the argument below that the breach of contract clean precluded the takings claim we said a case of saying that's that's not the case may be the case  case the other one i believe your honor is a huge case and again i'm saying these from memory in our policing below but these cases steve the general proposition that you can sue the government for the taking the words acting as contractual counterpart case that i can recall your honor that precludes going after the gov case one way or the other it is far as i can recall right now your honor that's correct in that this is not an issue that we brushed up for this appeal because it's not it's not at issue here t is an issue in the sense that it's rather two issues that we have to decide is there a cognizable property interest number one threat and assuming there is has that property interest been taken correct and it seems to me that that second inquiry gets a squarely into the issue that we've been discussing here with you today was there a taking and i come back to what i said i think what judge dyke has been saying with you that it seemed to me that the contract right namely the right to sue for breach of contract wasn't taken to you and credit if i'm wrong you seem to be saying that an actual for breach of contract was not brought not because you didn't think it was there but rather because a defense which you're going to have to work to overcome that's correct but it also doesn't mean that we don't have a separate claim against the government in there there is no authority that we're familiar with that says the bridge where we get into the question has there been anything in and the it seems to me the validity of a claim against the government assuming there's a cognizable probably interest right turns on whether something's been taken and if the right to sue for breach of contract remains no matter how difficult you think it might be to assert that right remain so nothing to take it well if it is a right you have a breach of contract right but that doesn't mean that there is no right it just means that there is a separate counter party with a separate claim if the government was the counterpart right there we would have to sort of reach a contract plea just because there's a private breach but it doesn't matter if the government of the party or not i think we're looking at the property right but in any action of the government take that property right or did it simply cancel it but still preserve his right to enforce it to agree to contract actually what is it and what i would say that your honor is just because if they had said cancel these benefits and he can't sue for breach of that if you cause a breach of contract but preserve the country actual remedy nothing's been taken away again your honor what i would say is there is nothing as far as we've seen and we believe this below saying that when you when you have breach of contract action against a private party that precludes a takings action against the government there's simply no authority on that the government expressed he made a decision not to raise that argument here before the appellate court and therefore i would argue that it's waived that it chose not to  milly's the court i'm going to take a slightly different avenue in light of the questions was posed that i had originally thought but let me run through my introduction first bizarre should have done as an additional matter was to sue freddie mac for breach of contract if you got a recovery well you would get whatever recovery the law provided and that there would be that if we argued that to compensatory damages and if that's the case is that provision retroactive so that is richer contracts it would be limited to compensatory damages your honor that provision would apply to the conservatorship that was the provision that was in place when the conservatorship was imposed in two thousand and eight so yes that is the applicable law as to all claims to this and there's been a lot of law interpreted that decisions of i think six circuits as to whether they claim for expectancy damages is barred by that we're not bored by that is the government have a position as to whether the limited story damages bars a claim for termination benefits that is something that we did not address in our briefs and that no i do not have the position as i stand here today  provision before this gentleman entered into his contract right absolutely right and you agree that under and it's a very very bones statute to spell out a lot of these things do you agree that the conservator under that provision had a right to repudiate the contract i believe that's correct your honor under the safety and soundness act which was in place when mr pacelle joint freddie mac there was provision in that for a conservatorship and i believe for the very sort of education that we're talking about i don't want to go back to i have not directly compared and put side by  is economic impact of course and this court has held recently in fact in the a decision that if you don't show up an economic impact there can be no take up here if there is a remedy through contract there can be no economic impact and therefore there cannot on the merits assuming that you have a property interest there can be no take the fact that the government direction to you to repeat the  said below is that you should bring your breach of contract in place to see how it plays out so one of the things we're disadvantaged by here is he didn't do that and so we don't know how that would have been resolved but there's no reason to believe that the action as regulator or the action has conservator or affects the amount they could be recovered as a breach of contract pretty and there's no question that the time for breach of contract suit is past what you're saying that as believe that if you were to reach the takings claim that apart from the property interest of question there were several independent grounds for dismissing it you know the pervasive regulation of freddie mac the fact that there was no appropriation of the contract by the united states and the fact that this trip is at no investment back the expectation that was frustrated and you would say that was still procreation of the contract because of the fact that what we have is a direction to terminate number one number two not pay the termination benefits but the right to sue for breach remained that's correct so that's why you say there was a bill taking up the decision but as far as the takings aspect putting that aside the directive was very similar to the directive that we're talking here there was a directive not to perform a concert of private party contract between two non governmental that would be a good reason to be familiar with it but yes so so the application of on the has not always been easily discerned when it should be applied and so it was at least at least outside the area of some sort of pervasive regulation so this case is at least distinguishable on that basis from  that he had that guess the question we've been discussing the contract wasn't terminated mr mr price l was was terminated from his position and freddie macas told don't hodder the provisions in the contract relating to terminations benefits when there's a terminations without cause right with what i would say or as it was an appointment agreement that guarantee which was breached it was a breach because he was terminated without being paid as to relations benefits he was an at will employee he was an at will employee that's correct in terms of the or even about the breach of contract claim i think as i recall this was raised below the law court actually addresses this and it's in the record eleven and specifically finds that a breach of contract claim here against freddie mac would not preclude a pickens claim against the government and looking back at some of the cases in our lower court br agreements to restrict the park assistance there that the franchisees could have sued the car companies easily but they sued the government for taking because it was the government's order there that actually led through the breach of contract claim in that case in that case your honor that a motion to dismiss was to night and allow the parties to go forward on the takings claim and there's no discussion whatsoever about is there a separate breech claim against the car companies that precludes the takings claim it's not in that case it's also in the government talk about because there is a separate breach of contract claim there is no takings claim against the government so there we have the supreme court nominee and we have this court thing allowing things claim to go forward even though there's a breach of contract claim against a third party where the government causes that third party to breach the contract i think is what i thought we were out of time for the moment but i got but we will give you the opportunity to submit supplemental briefing of fifteen double spaced pages each side