all from the department of justice representing the appellant sharing the kelpie and i would like to reserve two minutes of my time for rebuttal please mr mcc l o y is a former employee of the fish and wildlife service who has been sued in her individual capacity under a big conspiracy for damages and there are also the plaintiffs also have sued the united states and the fish and wildlife service on various claims those claims remain pending in the district court on cross motions for summary judgment and we believe that however those claims come out it's very clear that ms mcilvaine should be dismissed from this case under rule twelve b six for three reasons first of in plain of opposition to the motion to dismiss mccallum his motion to dismiss they said that they are taking his claim is properly asserted only against the united states now that constitutes a ban one of their claims they're saying basically they can't bring a taking slam against the kelby so they've affirmatively abandon that claim against mckillop they still have the claim pending against the united states and the district court and even after we pointed this out in our brief they did nothing in the district court to try to that or anything so that's that's their position now in the federal tort claims act case claim they've also indicated the united states is the appropriate party so on takings and federal tort claims they view the united states as the appropriate party that would leave their constitutional claims for free exercise due process etc right but would you just clarify and i'm sure we'll ask them those appear to be brought against miss macao leave only for equitable relief that's what the complaint says they've never moved to amend the complaint and the quite stands before you as it is on those claims and i think it would be remedy because under the constitution there's no there has to be a waiver sovereign immunity to bring the damages claim and there isn't on a year for a free exercise or due process claim so that's why the court created a defense claim so they haven't by not only sort of like a dory jurisdiction here it comes from the fact that we're here on a qualified immunity appeal which relates to damage which was some relate to that and the unity from damages but then you say there's no damages so what is your analysis on how the court would deal with jurisdiction and that both the court of this court has jurisdiction to address the our appeal of the motion to dismiss under  section twelve ninety one as the denial of a motion to dismiss based on qualified immunity is an appealable interlocutory order because of the collateral order doctrine but it's limited to the issues that are germane to the qualified immunity determination would you agree exactly and that the both of our issues actually all three of our issues are the fact that they've now abandoned their claims is clearly related to the qualified immunity issue they can't recover on a claim that's been abandoned second our argument that the plaintiffs have failed to state a claim in the wilkie case the supreme court of footnote four said that  dismiss based on qualified immunity it is permissible for a court of appeals to exercise jurisdiction to address not only the question of whether the plaintiff is violent or there's an allegation of a violation of clearly established law but also the first  so i think of would rest now the first argument which is the plaintiffs have either affirmatively abandon or apply themselves out of a bit of a cause of action are second argument is that even if they were still alleging this cause of action against alvey that the court should not recognize this cause of action because an alternative alternative processes exist to protect the constitutional interests that the plaintiffs assert first of all they have a takings claim and the the process that exist to protect that claim is they talk or act or a little talk or act claim for damages which they in fact have pending in the district court well they also have this kind of catch twenty two situation they're in in terms of the jurisdiction between the claims court and the district court for the under ten thousand dollars you know they've been kicked out of the court in d c because they have this action pending and there's kind of this little delta that might not get dealt with how do you address that in terms of alternative remedies well two points first of all the week senate twenty page a letter with what had happened about fs there have now conceded that more firm of europe represented that they're taking a claim exceeds ten thousand dollars well if that's the case then and this is explored in our motion for summary judgment in the district court of this case if their claim exceeds ten thousand dollars which is what they say then the district court doesn't have jurisdiction over any kind of a little talk directly that has to be brought in the court of claims which again they can do well and then what's the alternative remedy for their free exercise claim the administrative procedure act this court in the western radio case held that the administrative pursuit procedure right constitutes an alternative remedy scheme that precludes the of a new bivins remedy where a plaintiff has a right to challenge finally agency action and here it's clear from the allegations of the complaint that the fish and wildlife services decision to reroute the springs restaurant radio case which is controlling the court now that would cover both the plaintiffs free exercise claim and their due process claim asserting a liberty interest for the same reason again they can bring they can vindicate that interest under the administrative procedure act and the only remaining claim is the property aspect of their due process claim and we believe that the talker act and the little talk or act provide an alternative process for protecting that because that's a property interest and it involves the taking of the water and while they can assert that undertakings claim i see that my i mean to my rebuttal time so unless the court has any questions i'd like to reserve that time now that's fine thank you thank you  well i disagree with with much of what was the first thing is that the takings claim to the extent it was abandoned was abandoned against the government because taking i think it samanth the taking is a constitutional taking by government and we're going after an individual employee here in our individual capacity because nobody is he said in the opposition on the motion to dismiss that the united states is the proper party and of course that's a different party than this mccalla be so yeah any authority for why you can bring a takings against an individual in the government and also how do you square what you said is that right that's not what we're seeking it may have been inarticulately plaid but i'm sorry i said that's that's not all that we're seeking we're seeking that what your complaint tada money damages for any injuries he has suffered as a result of the agent's violation of constitutional or its fourth amendment in the bevan's of the constitutional violation but you have  so now because it's more than ten thousand dollars you acknowledge that you can have a little talk directly correct well of course we can't let go of yes i mean well and so we have to thank you out of district court on that might not everything or a claim and certainly we can take the ten thousand even though the damage is hundreds of thousands of dollars and now there's been record there's been yet another flood as a result of what they did so now we have even more damages that have to be dealt with i mean the but the bottom line then would be whether it's ten thousand dollars more than ten thousand dollars that one of the tucker acts would provide a statutory remedy for the claim damages for the diversion of the water right the the little talker said no longer works the big talker doesn't work because the twenty eight u s c fifteen hundred because they violated other constitutional rights at the same time and in addition to that the property interests that you mentioned are not abandoned because you know the government keeps arguing that lingle i'm sorry the government keeps arguing that the takings claim completely eclipses the substantive due process claim on the property interest but under lingle it doesn't i've cited lingle i mean it like  i can quote from it's as takings clause presuppose that the government has acted in pursuit of a valid public purpose the cause expressly requires compensation where government takes probert property for public use it does not  government for interfering with property rights but rather requires compensation in the event of otherwise proper interference amounting to a taking converse lee if a government action is found to be impermissible for instance because it fails to meet the public use requirement or so arbitrary the a p a as i read it doesn't allow for monetary damages i mean we could use the a p a to stop to stop the hemorrhaging but we can't get it for the blood already lost the water for the time that it's been taken course now we have a complete manner they violated state statute which i cited yesterday for your clean water act the defendant didn't even get the clean water act permits as required ignored nepa fema the county flood plain manager underneath went to and said hey you can't do this water movement without doing a letter of my provision so you had specific notice that that she need to do something to comply with the with the fema regulations she ignored those and as a result of course we have the flooding there's other instances in her individual capacity if you have a straight shot to the relief you think you won against the government well i guess perhaps i wired what is why i wasn't quite as careful with the claims as as i start out but we don't have that i mean we've got them arguing in the district court that we can't bring a tort claim because they're allowed to move water negligently under the the the exception to the federal torts claim act a discretionary function exemption we've got them saying we can't get a taking because we're bringing a constitutional claim at the same time and we can be in two different courts even though no one court can grant us relief immense a horrible situation it really is and you know i think it's a lot for a you know  relief for the complaints that you're talking about whether it's under the a p a whether there's an injunction against you mean you could get an injunction or declaratory judgment against the government qua government without  saying you can't divert this you can't do this because that is improper either under some environmental statute or some constitutional and so you haven't yet gotten decision on the merits and that's court they've denied certain even though the fed circuit said hey there's a substantial constitutional problem here i mean the fact that they didn't grant cert makes the key the case for our mcabee action even stronger because how are we going to get through all these other cases in the next eight months and still be able to bring a tape because our are taking school a month or the statue of limitations is going to expire in august it's not there's no way we're going to get through the district court trial and an appeal here if necessary before that takings before the statue of limitations runs and then be left assuming they're correct on the merits left high and dry without any money and the only way they can get that is through some alternative claim that's not a tucker act claim we believe that it's not clear that that's actually the case and the briefing in the court of claims case explored this and also judge toronto's opinion in that case explored this and what he said and again that in the government's certain op which is cited that you can get it it's not necessarily clear that they are that they have to plead all their claims in the same case for example there f t c a claim involves flooding that's a different set of nucleus of facts than the case potentially representing the you know the diversion of the ditches and let me ask you this that water rights they could they asserted takings claim against the federal government in the court of claims and simultaneously assert a claim not against the federal government but against mr kelly in the district that's the issue that is the diverted to in those briefings in the claim for money they haven't pled a public use of violation of the public use aspect of the fifth amendment and there are no no claims there's no allegations so that's the answer the public is now in pretty close to a second thank