second case in which will hear oral argument the smore ning is number zero five dash fifteen hundred freedom new york versus the department of good morning just want to confirm you've you won't you've reserved five minutes for rebuttal correct ok step on up and you can begin whenever you're ready thank you they please the court during the nineteen years since the defense logistics agency repeatedly breached freedoms and every five contracting wrongfully terminated contract the united states apparently as a result of that the best rests a strong often it's because they've consistently attempted to characterize freedom as simply an underperforming contractor rather than admit that the government forced freedom out of business when we were able to pierce through that characterization at trial in the board decision that would result in two thousand and one the board's findings of fact that actually identified and pursued the record came out with findings that came out to the contrary that in fact freedom was blameless with respect to any contract deficiencies in fact it was the government that had violated breach the contract is not the issue now the issue is is whether the remained issues that they considered connection with  what we need to do when each of these three issues is the same as the board did in two thousand and one which is pierce through the characterization of focus on the facts i believe that when we do that indeed this court will determine that my twenty five is on a four so there are three areas that like two three issues with respect to which i'd like to highlight a couple the facts in the brief and perhaps supplement the record one is with respect to fraud the inducement the seconds with respect to the lack of consideration argument and the final one has to do with the request for this board to this court to reconsider its previous to such a decision on the basis of manifesting justice let me ask you this we're going to ask if somebody stepped into the wrong and said you could only have one of those arguments you had to i know this is a kind of question the lawyers often don't like but say you had to just rest on one of those arguments which one would you go with in other words i'm asking you to start off with what you view as this strongest of those contentions and i realize that when you select that one in response to my question you're not abandoning in any way the others but what do you view of the strongest of those three arguments your honor if you'll forgive me for answering the following way i think with respect to likelihood of success i think fraud in the inducement is the strongest argument must find don't but never nevertheless there are the reason i want to qualify that is i think with respect to the underlying facts really the manifest injustice argument is the strongest one i just put it second because of the burden that i know comes with asking this court to reconsider and change when it's prior decisions why do you think fraud to tell us why you think fraud dusun is your strongest argument with respect to that argument you're a fraud the inducement the facts show that the discussions between freedom and its representatives in the government in that period of time prior to the signing of my twenty five might ma wanted to confirm my understanding but that's correct the view on guaranty because at that point everyone freedoms representatives and the governments representatives acknowledged on the record both from freedom and government in d n a s into terminations and findings acknowledged that you in the board seem to be addressing different theories of fraud here i mean it's as i understand it you're saying the there was fraud because the government to go shitters knew that there had to be an appropriation order treated the alleged fraud has been whether the government gushers were aware that the v a long program was going to be shut down i mean that's that's the basic problem here is that you seem to be talking about  different four of them the board dress and the question i have is it is there any evidence in the record that the view on was done not because the appropriation was not well the i don't think there's evidence that the feeling was denied what happened was that over the course of those months after the application after my twenty five and then mr tobias when informed freedom that well there was no appropriation and that being the first time that freedom understood that that was a prerequisite having alone having the loan approved freedom went and tried to get an appropriation but there was never any denial because without the appropriation it could be approved maybe i used the wrong word or i said not that it wasn't process because there was no appropriation yes or the f not testimony to that effect well i believe there certainly was testimony by mr thomas and by mr gross mr gross was the lender that the application that they submitted was never approved there's certainly testimony i don't have the the site right now but they certainly testified today and essentially that the record shows that it went up to congress the last the record shows is the application went up to congress for consideration and there was never any further movement on it and therefore would never wash because they have the appropriation process or that they would let the paper work for specific loans went up to congress that's my understand your honor i really don't know myself the the way the b loan process usually works only note in the context of this case and that's my understanding based on the record it was the loan here sent to congress was the l the record reflects that it was but that either it i don't know it was denied or just died in congress but there was never approval of it after it was sent on to congress that's my understanding where where do we find the testimony  is i would have to find the site there is actually a in the record there's actually a copy of the document from congress indicating that this approval of the request for the loan has been submitted to congress so that's in the f t exhibits i don't have a specific exhibit him but it would be happy to find it was how to word it more as the fraud and this was the way things happen that what we found out later were freedom found out after simon twenty five was in fact a deal in process isn't supposed to work this way the v a loan process is that the loan guarantee can only be offered if there's free appropriation of applying for a v loan and then said you need to be pre approved so he knew that when he told freedom and randy gross of bankers leasing ok we'll give you the loan for the two point seven million he didn't tell him in freedom give you  approved that the program had been shut down on the step of the shutdown turned in there is there testimony in this record that there was no processing this long because there had been a pretty appropriate with respect to for that the answer to that question is no because at the time freedom didn't understand that it was the pre appropriation issue that was at stake all the time for me at what time at the time just at the time the record was established what freedom had been told that a record of this case before the court yes what what freedom had been told in eighty six during the negotiations over my twenty five the reason the processing ended by smith but what prevented freedom from making a record on this point that the law wasn't process because of the lack of appropriate appropriation what prevented freedom from making that record at the time of the hearing what freedom what freedom understood at the time was that the the program had been shut down that's what they had been told it turns out that that's not the case but that was the understanding the freedom had that's what they were told the end of eighty six we can't process alone the program had been shut down and that's the understanding freedom took into this case it was only after that point that with the discovery of these cases the dry mix cases that mr cobb iseman was involved in after the trial that there was a realization that that's not the way the process worked at all that's true today when did you discover the case that was in the context of this appeal at page eight it seems to me the critical finding on this issue with a quick critical point in the board's decision is that page eight the paragraph at the bottom that starts the record contains no evidence it seems to be that that seems to be the finding that you need to overcome in order to have us rule in your favor ok yes or you agree on that yes or what what do you to what do you point in the record to show that this finding by the board here at the bottom of aig is incorrect i mean that seems to be the critical point what can you cite as to in the record that will in your view convince us that that finding is wrong and thus  in favor yes or on of the i think with respect to the record that excludes the dry mix cases that we've now submitted in connection with this appeal i think that the only evidence there is inferential there is nothing that i can point this  would be fair to say then that based on the discovery of these dry mix cases that you've changed your theory of fraud from the theory that was presented to the board and that your nap was a deal i don't think so your honor i think that perhaps at most it's a  question of characterization certainly the way we presented it to the board wasn't using the phrase shut down that we didn't know that the program appropriation argument was made for using the term pre appropriation that's correct but what we understand now is that the shutdown of the program for our purposes was pretty pro creation that it was shut down to us this was a characterization that mr bison used with us not not one that we invent it but what we mr francoise freedom for present it went to congress or stated that he was in the process going to congress to obtain an appropriation for this deal before the ability to obtain a meal and so it's clear from the record that the availability of the below was not simply based upon a prior appropriation of prior year that in fact this freedom knowledgeable representative mr francoise understood that immigration could be private lending institution and presumably that institution would lend the money to freedom and that loan internal be guaranteed by d l a is that correct essentially your honor i believe that the process will involve both a deal the federal reserve that's what i want to ask you what was the role of the federal reserve because i understood d l a is providing the guarantee in your certainly correct that the federal reserve was involved in the process here what was the role of the federal reserve in the program  this loan application so that it what the deal lays purpose was was to tell if it was or yes this is a contractor who should be considered for this and i believe  issue what evidence what is the substantial evidence in your view what is the substantial evidence in the record that supports this fin because as you know we are bound to affirm as long as there is substantial evidence so you should be in a position to say ok here's the substantial evidence that supports the statement at the bottom of page eight yes or what is it in your view  it was discussed in the context of the the entire context of whether the field to be approved and in the shutdown i don't recall if the appropriation itself and here's a freedom here argues that the appropriation itself was an issue but for the board it's clear that mr francoise that the issue of appropriation was brought up because mr francoise discussed in his testimony the appropriation being sought from congress well what was the there seem to be possibly two separate theories here one that there was a failure to disclose that the program would been shut down and the board found that there was no proof that the government go shooters knew about my understanding correct the other theory seemed to be th communicated i don't believe so you are not i did not i did find a testament to that fact but the opposite testimony that the appropriation was pursued by mr francoise isn't the record and that indicates that different issue from whether the program was in place in the sense of congress was congress able to appropriate money for it as the board found i believe it was september of forget the exact year but it was later than eight hundred eighty six the appropriation the ability to appropriate money for the program was still in place by congress so that that wasn't an issue and isn't an issue in this case although freedom attempts to  cases of memory or not were a fact already per contract or clearly wrong at the time of the sign signing a petition twenty five those cases were not in the contract they were only able to be reinstated at th option of the government the discretion of the government freedoms assertion that during early negotiations or discussions regarding that that they objected to that language is not of any importance because freedom agreed to that language that in fact was discretion of the government in addition the other elements of consideration found by the board such as the nineteen thousand dollars additional payment painted a hundred percent conversant was also a consideration for my future going in addition in fact mr lambert freedoms attorney said at the time that based on modification itself the document modification point five that freedom would be able to compete complete to complete the contract that in fact the the integration that my twenty five was integrated and the two documents whether they were tash not attach really didn't matter henry thomas just want to attach to the side letter and therefore under the restatement that is of no moment for this for this court i respectfully suggest that this that's error because if we examine the facts of what happened here those two documents but the undisputed findings of fact from that point are that mr bancroft then proceeded to say i need to get approval for this signed agreement i'm going to go fax it to mr qasim and he went into the back and the record joint appendix a fifty two i'm sorry on the joint appendix eight fifty four shows the fax cover sheet what mr bancroft did was separate the two twenty five so to the extent that this court ruled that well we cannot credit the attachment of the two documents because mr thomas is the one who attached the two documents before signing even though that's a statute of frauds section of the restatement and i'll leave that to the court to address in its deliberations but in fact it was mr bancroft who before signing the two documents board below did consider there's no question that the government and sprit consider these circumstances and under these circumstances it's manifest injustice not to recognise that in fact it was the government that was exceeding included innocent did prior decision testimony from mr bancroft saying i told him at the time there is no side agreement no side agreement that testimony i found puzzling that the court would include that in his decision that testimony was express rejected by the board finding mr bancroft specifically on that point to be incredible as a witness for this court to then include that testimony to me suggests overturning a finding of fact that's a finding of fact but without the accompany findings analysis that says it wasn't substantial evidence for the board to come to that conclusion so without crediting mr bancroft testimony as the board rejected the facts demonstrate in fact was mr bancroft who tasha's who documents and signed off on that hash document without under those circumstances you and i just find it unsupported in the facts or lot to pollute as this court previously did that integration prevent the consideration of the cover letter side agreement whatever we refer to it as as part of my twenty five with respect to consideration your honor the only thing that i would add to what we have in the brief is that what the board found was that the reinstatement one hundred fourteen thousand cases didn't cost two consideration for my twenty five because even if the terminations those cases constant consideration i'm sorry if it did constitute a situation  even if they said that's because even if the well they said if it even if it was converted to a determination for convenience all you would get were here costs correct and there is what i'd like to point out to the court in seventy four at page two seventy three after the meeting about reinstating the hundred fourteen thousand cases mr bancroft stated that the government stated to freedom that pending additional consideration final approval the government would terminate the default of fourteen thousand cases revised delivery schedule to that shown above which includes the reinstatement of the cases used positive wording re the reinsertion quantity and review the progress payment ceiling and other words that the government had promised freedom in its meetings yes we will reinstate with respect to the fact that it when my twenty showed up and had the sole discretion language there is evidence in the record that says mr bancroft told martin leaving the