morning before we begin this morning  person but the key question is under her what is the meaning of the statute did congress intent when we're looking at equitable told putting class action to an aside did congress intend to trump a presumption in favor of equitable told and the supreme court said that the indicators of congress's intent can come from many sources including a long history of prior decision from a court interpret in the statute after all the courts interpretation of a statute is the meaning of the statute so we discern the meaning of the meaning shall be barred is soriano in prior cases and this circuits opinion in sandton supreme court's decision in say the court concluded that the nature of that waiver of limited sovereign immunity was such that it was jurisdictional could not be told but class action told is different yet in stone container this court ruled that rice was on that panel i believe that because the federal rules govern told against the government and because of federal rules have the force of a statu american type tolling as a general categorical proposition applies to tolls statutes of limitation against the government in class actions not in the force of rule twenty three you're moving i take it from the broader argument about case categorically without awaiting of the five factors or a petition of the presumption that would apply to the equitable told let me let me ask you this i take it with respect in this applies to both cases to the extent that you can speak to the other one you know if that would also be true with respect to the various pending cases that are out there i i was a little unclear as to the scope of the classes such that it was left as you say that the court emphasized the starry decisis factor several times in the course of its opinion but there was one passage of the opinion that i thought had somewhat broader potential application and i wanted to to get your take on that and that is that i guess the second paragraph of part two of the opinion where the court talks about the distinction between those statutes of limitations which facilitate the administration characterized as being more absolute than the other category case this why is it that six o five does not fall within the facilitating the administration claims characterization the statute of limitations six years congress said it was clarified it was clarifying the statute of limitations it would be opt for congress to choose the word clarifying if it was intending to change the entire industry the structure of contract appeals why was congress clarifying what we know that prior to the nine hundred ninety four inaccurate latches was to control in principle for contract appeals so you had many litigation in many cases involving latches was the length of time such that the governor had been prejudiced well it's clear that the statute of limitations of providing a definite statute of limitation for buys a clear rule congress clarified earlier latches law eliminated the need for any in litigation over  defendant prejudiced by the failure of the plaintiff to file early that this case specific problems produced by latches the enactment of a six year rule eliminates this case specific problem proves the case pacific process makes the case specific process easier because everyone can point to a six year rule six years in the data cruel and and know that that's the deadline that applies now this court has had has never applied the  among the court as well as the shall be barred type of a mandatory language that was in that second statute of limitation so if we take sand to mean what it said and in the passage or are quoted sand cites to  a specific word to that stack to the court's general approach and under that analysis we must acquit under early because this is a plain vanilla statute and with regard to that i'd like to compare to your honor the presumption in favor of equitable told but you don't see that in six zero five do you think there's really a principled basis for and i'm i'm really i'm not trying to challenge your position here so much as trying to figure out what the supreme court is trying to tell us to do did you think there's a principled basis for characterizing the sweep of john r sand and gravel as the court characterize the rule than to say that it involved an old statute that had been construed for one hundred years and a particular way very quickly turned to a discussion of a long line of cases more recently with soriano on the docket story decisis which has come up since then in other cases and i think the best way to understand sand and gravel is based on star that said i would not be andrew to say that if we were right if they were writing a clean slate they would not agree to the same conclusion they might well have reached the same conclusion after all many judges on this court believe that a time or view can forbid good morning your honor i'd like to follow up a little bit on the points that were just discussed if i might put up with with a slightly different angle one of the aspects of the swing board contract appeals decision that not the claim was submitted properly in accordance with the statute and in great personnel the armed services board of contract appeals look to the federal opposition regulations to help define the term claim because it's not defined in the contract disputes act itself we don't think that's the correct analysis in this case we're dealing with the indian self determination education systems act which is unique remedial statute and contracting statute as the united states supreme court made clear in cherokee and as this court made clear in charity as well and we think that the c b c error in not looking at the political regulations that were promulgated by the department of health and human services implementing the contract disputes out cross reference that in the union self determination act and if you look at those regulations it's clear that the only thing that is needed for a claim to be present and to be submitted is that it has to at writing submitted to a contracting officer in the contracting officer has to issue a decision there's nothing in the regulations say anything about any time this provision or that cross reference is the six year provision in  the parliament itself has interpreted the rule and the statute then the analysis that great personnel itself used is that you want the regulations to help define what a claim is and here limitations i think it's one of your questions judge bryson and i think one other point that could be added to what mr miller said is that the court illustrated in sense through three different cases the types of statutes that would be jurisdiction from the time statute that we're dealing with here mr miller did when he spoke specifically about the terms so i think that the illustrations that the court itself provided in sense of the types of statute of limitations that should be read more sense illustrate the point that the provisions of six o five a really don't fall within the category of statutes that i think the supreme court was talking about and that part of the as your interchange with mr miller indicated earlier our view is the same which is that if legal tolling applies under rule twenty three then there is no need to get into the equitable tolling analysis  because it would it would answer the question across the board for not only our cases but all the other  line with an affirmative defense just like latches which is the theory that was in place before nine hundred ninety four which in fact was also addressed in the coups met macapp cases and that's one of the distinguishing facts file a claim within the six year time frame that the government argued should apply in fact they filed it close to nine years after but the c b c i was convinced that it was reasonable for the plaintiffs to wait while the litigation unfolded on the certification process and rejected the defense of latches similar to the defense of watches we think that noncompliance with the six years treated as an affirmative defense than the tolling rules would apply first the legal tolling rule and then if that would not apply then the equitable tolling rule as an alternative i do want to point out in terms of the legal tolling rule that the government has as asserted in its response that the legal totally rule should not apply to these cases on a for a couple of reasons one of them is that the legal tolling rule is judge made law which is categorically incorrect the cases have made it clear that it is in fact a statutory law and so that assertion moody's is not correct and your assertion that the government is made law insofar as they relate to the temporal jurisdiction of the court federal claims those it though in those cases the scream for express that congress had expressed its intention to limit the jurisdiction the quarter federal claims to claims that were initiated within six years of the and not only be on the six years in in a narrow sense but there would be an unlimited time expansion and also it would apply to a very sizeable class of cases before that court so effectively if six o five can be told then there is with the question of how by how much it closed what one of the things that i was wondering about is of course the supreme court in the senate grab a case he's dealing with a statute that was an act after the decision of the supreme court in early does that give us some guidance as to what congress may have had in mind when it inactive this statute and didn't put in any enactment of the amendment to sixty five that there would have been at least hypothetical some awareness that this wasn't necessarily going to be construed the same way as kendal congress knew about that we should or should have known about that at the time it adopted the present limitation moreover it put it if you put the six year limitation in the same vision that gives authority to the contracting officer congress's intent as well there's an exception in the statute that doesn't apply to contractors and or bias in favor of the government now i know that as you know argues that that's an indication given the fact there's only one limitation and it runs in favor of the government is an indication that congress didn't consider exceptions relative to contractors but that simply isn't a reasonable way of looking at that in fact the fact that commerce adopted one limitation exception and only a lot of to run in favor of the government is actually more strongly suggestive of the possible to the congress didn't want contractors to be able to avail themselves of exceptions in this context what does the american haiku construction are about something other than that assumption that the american pipework made valid statutes there about the broader system illegals the dollars and were discussed so that promise doesn't apply in the context of jurisdictional statutes moreover you're dealing with a jurisdictional statute as you define it here then the rule twenty three tolling never applies regardless of how clear it was that congress need him tended jurisprudential barrier where we no longer say that six years means six years that was the scope of what we say is six years plus applicable to is what the scope of the waivers if you accept that and we're obliged to accept it why isn't the applicable tolling provision here rule twenty three just as the applicable that you're going to pretty broad characterization of john or sandy graham what's left of her when after that if that characterization is correct well i think both john are sandals demonstrate that there are some outer limits too to the early dr not not all statutes were going to be considered under you know the urban analysis but the supreme court really had already said that in brackets and in a sense what we're suggesting is really nothing more than a particular application of problem in that ultimately looking at what congress is intent was and if the court determines that congress intent was not from a tollin is precisely what was left after all so you think that john r sand and gravel does not change the rule at least in so far as the rule was established as  to or not to be implied and then when congress provided a time period during which it was going to make the government amenable to suit the psoriatic work said that the congress was entitled to assume that ethical considerations there is some language to balance that out there a few instances where john are saying court talks in citing were absolute terms but more importantly there's no indication of the john are saying court intended to draws a distinction between cases relating to class action tolling i think it's far more likely that when the court used the phrase ethical considerations and john are saying it was attempting to expand the concept beyond tolling and not to narrow the made a timely presentment of the claim you are you saying that the class action suppose the class action had been certified and the court had gone to judgment and ruled with respect to the entire class that there was no cause of action no right to recovery are you saying that would not be rescued at kata as to those plaintiffs class class members who had not  already filed present order saying you lose i mean it strikes me that you're making an argument that you probably wouldn't want to be making if you won the class action diminished exhaustion apartments can be subject to class action tolling is that none of those cases considered the loss of efficiency that i discussed a moment ago and the reason for that in adopting present limitation maintained the most critical aspect of section twenty five one which is that claims must be initiated within six years and in fact there's a historical basis for the infin the court talks about the fact that twenty five  quarter federal claims creating a narrow exception that is both consistent with the history of the jurisdiction of the court at all claims and is designed to fill it with a specific desire that congress had to commit administrat address that the ca claim process is detailed and complex exceptions the court also should take into account the lation shit well other factors that relate to section twenty five zero one and twenty four on given the unique relationship between us not just relationship in just a moment but i do want to point out that context of section six o five now the problems argue that six zero six six zero five twenty five zero one and twenty four one are not into related way that we describe but the present limitation limitation very clearly is an exception to both twenty five and one and twenty four one and in fact in twenty four i want congress to explicitly noted that conversely explicitly made the c d a time provisions and exception twenty four i want moreover the present limitation in section twenty five on both relate to the jurisdiction of the court for all claims and all three of the statutes looked at more generally established the outer limits for temple at the outer limits for claims against the government  lesser be any doubt about whether or not these statutes are latest point out that in proving this matter before the board before john or sam has decided that the college route is proof that congress quote drafted to see a limitation in section six  fifteen eighty one i must be non jurisdiction because i don't contain are held to the country right that's correct right so what about fifteen eighty one i is makes it non jurisdiction one is not jurisdictional the point is that the stone container court didn't give it jurisdictional effect and that likely is because the confused state of the law that existed at the time when the court actually says it talks  rule twenty three to stone retaining just not expand the court's jurisdiction because the supreme court sets supreme court says so in american pipe in part three of its opinion supreme court allowed rule twenty three class actions to be brought in rejected that proposition and that's why this circuit decision obviously workers don't detainer is unchanged by saying the rules apply to the government because they have the force of law they are a statute now although we  apply both the rules as statutory law and six o five it it is possible of course for congress to act otherwise but we have to presumptions want is we presume that there is equitable we presume that the rules apply fully unless there is a direct expression to the contrary from congress the walsh case from the d c court lays out that law well there must be a direct expression and we have such because after all the rules are but another statute which congress can change but the presumption is that the rules apply unless congress speaks clearly to something under the rules and makes a difference the same is true of equitable told there is a presumption that  equitable tolling applies unless there's something from congress that overrides that something explicit and here again the presumption from the young from young is that congress is aware of the early presumption which is the board's jurisdiction six zero seven d tells us what the board's jurisdiction is actually in six zero seven of the congress both explicitly and instead the civilian board shall have to jurors stiction to decide any secondly stone involves rule twenty three sand and not involve rule twenty three throughout the court's opinion in all of the cited cases the court is talking in sand about cases where the court was called upon to answer this question there equitable told or not and sometimes the court said yes and sometimes the court said no they were all equitable tolling cases nowhere is class action tolling cited in sand because it doesn't make sense conceptually it's not what that case is about congress's intent is the touchstone and we have to go back to begin and end with the contract disputes act and there is no indication that congress is addition is clarification at the end that that no because in order to file in the court of claims you still need a contracting officers decision which would be achieved through six o five and six o nine is the timing provision which would apply and the  twenty three would not be available if he said ministry to present requirements are not satisfied but that that really isn't the case and and if anything these cases that we're talking to you about today are reflective of how the salutary effect works in the ministry of setting the church a case was filed and many tribes around the country over two hundred had similar types of claims and very few of them decided to litigate this claim separately they watched the church class certification process and then made a decision at the end of that certification process about whether or not their claims wanted filing suit individually and spend the time money and energy in order to litigate them in fact the government's position that they're proposing is accepted today be a very different landscape would in fact be present filed what would have amounted to potentially thousands of claims because each tribe has potentially up to ten fifteen years worth of claims and contracting officers would have been inundated with claims decisions would have been issued or not issued of the case might be but if they had been issued then that would have triggered the different timing provisions under six zero six and six zero nine and tribes would have been in a position where they would have had to litigate their claims individually regardless  federal decisions have have found that as well i think it's also worth underscoring that in the church and certification process itself the government took the position that those tribes that had already exhausted their administrative remedies should be carved out of the clouds the quicker they would address that issue all to milly because the court decided not to certify the class but one can presume that what the government was arguing was that the class that did not exhaust her administrative revenues they could not be members of the putative class that the circular reasoning is not very persuasive the other factor that i think is important for you to know is that there was in fact a class action it is still a lot of class action case today in which the core found with respect to contract support class claims against the bureau each individual trog that had similar claims did not have to administrative lee exhaust those claims before they were part of the class records cases that the rock class action and that the court