three sixty two covers emotional distress damages in the plain text and structure of section one of six make clear that the government's immunity is a waived to the full extent of section three sixty two including expressly monetary relief the point  f section one of six is to put the government on equal footing with all other creditors and when congress wanted to change that baseline it did so expressly by carving out punitive damages and limiting fees and costs and the i r s is a main argument in response is that section three sixty two did not clearly establish that it covered emotional distress damages but section three sixty two did not need to clearly establish anything because it is not an immunity waiver the supreme court has made clear that when you have t provisions one a subset a provision that provides the claim for relief and the other provision that waves immunity to enforce that separate provision you only apply the immunity can and only strictly construe the provision  you have a paragraph that waves immunity with respect to all these fifty nine numerated code sections and eight to makes clear that the court may determine any issue under those sections and then paragraph a three and this is key covers the relief you get under those fifty nine enumerated code sections and it's all monetary and non monetary relief other than of course what's expressly carved out which is an important point that i'll return to in a moment but just t underline this this point if paragraph four then says how you obtain how you enforce that money recovery that you've got and so could you explain one thing and i think it's one of the government's key points and that's the timing of an act many of these sections is my understanding that you first have the sovereign immunity waiver and acted in ninety four and then later at that at that point been no consensus about what to do about emotional distress damages does that matter in terms of the sequencing of the statute and then the substantive right to get emotional damages not at all because that's just the same point that they've twisted just to use timing that you need to clearly establish what the substantive persian says and that's because congress knew exactly what it was doing when it structured section one of six earlier cases that had the ta correct in goma's pres for instance it was the question was whether retaliation claim under the age discrimination employment act could be brought against the government and at the time supreme court didn't ask whether at the time retaliation was clearly established in the background law or whether the statute specifically said anything about retaliation it was enough that one provision waived immunity to enforce the subsume provision whatever it may provide and this is the exact same structure so congress knew exactly what it was doing when it enacted section one of six and when it structured it the way the congress and what prompted congress to enact one of the six six basically didn't adequately do exactly what this amendment does and so in that previous version congress had tried to use these try what the supreme court called triggering words equip basically equating the government with an entity or creditor where those terms appear throughout the code and the supreme court said that that was insufficient to waive it for monetary relief even if it was sufficient for equitable relief and so congress had and one of the supreme court's concerns was that the only limit on the waiver would be the number of provisions that use those triggering words so i think this was a very natural reaction to those cases congress went and found every provision that it wanted to include in the waiver and listed them out one by one so there is no ambiguity and then use these broad terms of money recovery money judgment to show that it covers monetary recoveries in addition to equitable recoveries and is there anything in the legislative history at the time that limited the waiver to substantive rights that existed at the have to kind of strictly construe the subsume provisions i know they try to use a paragraph a five but all paragraph a five says is that section one of six doesn't create a you're a cinch let me in  first circuit didn't even cite or acknowledge the existence of this controlling supreme court precedent that says you don't strictly interpret the subset of provision and so we recognize that they're the first circuits reasoning is difficult to reconcile with the result that we're asking for but they simply didn't acknowledge this controlling supreme court precedent gomez pres and so forth the idea that you only strictly construe the immunity waiver and just to focus again on the text of section one of six the term money recovery all it means in context is that the debtor obtained money instead of some other form of relief is there to identify the form of the relief and not the type of the injury and again it's to make clear that it covers monetary recoveries in addition to equitable recoveries which as we just discussed was the critical failing in the previous version of section one of six to draw that distinction and so this was congress putting the government on equal footing with all other creditors because as the court recognized in the d b s i opinion that judge has authored it would be unfair to let the government shield itself from liabilities while participating in the distributions of the estate and this is a very natural way to use the word recovery you ask what did the lawsuit recover did you recover economic damages or non economic damages did you recover fees and interests and so forth and this has to be the correct interpretation also because  government's view is entirely implausible because of all the inconsistencies with the statue would produce it admits that it would make the punitive damages carve out entirely superfluous and that's not all the second second second sentence of paragraph  three which limits fees and costs under their view fees and costs aren't covered anyway and as we also explained it on pages a fifteen to sixteen over some of those enumerated code sections in paragraph a one way of immunity for expenses that also don't fall within the government's definition of money recovery and so that would also be entirely pointless and i see right at my two minute mark if i could say the remainder might time for a bottle  correct this court need not apply the strict construction canon to section three sixty two of the bankruptcy code in order to rule in the government's favor in this case what the government calls upon this court to do is to strictly construe the waiver what congress understood section three sixty two at the time that congress waived its sovereign immunity with respect to that other section and that is is there anything in the legislative history that reflects what congress under so good at th time there is nothing specifically referenced in the legislative history at all your honor about why three sixty two k was enacted at all there's there's legislative history for the automatic stay in general but not that specific provision section three knowledge woman and you combine it with gomez perez i'm going to hard pressed to figure out why you think somehow emotional damages are carved out of one of those six maybe you can tell us more specifically having to  the question is not whether emotional damages are carved out of one hundred six the question is whether congress included emotional distress damages within the waiver of sovereign immunity in one of six and i think that that's a very different way of viewing the interpretation of a waiver we were talking about a judgment for an award out of money recovery or act damages our money recovery would you agree with that money damages our money recovery no your honor not militarily why not money recovery is a very specific unique term money damages may what does money recovery mean in your view well your honor i would like to offer that and then also an explanation i believe it is our position that money recovery means the returning of psalms that were either appropriated by the government or perhaps it could mean money that was expended as a result of government action things along those lines and in that sense i don't make any sense when the them followed by the words but not including in a word of punitive damages this is not like the government got some punitive damages now you're getting him back  included in any such in any such judgment entered by by the court here and it's important to note that while emotional distress damages are nowhere mentioned in the bankruptcy code punitive damages are including in section three sixty two  damages are listed there and so when congress specifically mention that punitive damages are not included among the types of recoveries that may be that may be made the types of judgments that may be entered it was it was potentially simply argument they didn't really need to put that in at all that what you're saying congress didn't really need to include that phrase it's possible that that was not necessary but nevertheless that they could include it for sake for emphasis sake to make clear that those types of damages which are explicitly allowed in some of the code sections for which the waiver of sovereign immunity was made in section one hundred six that that nevertheless those damages are not allowed as adult as a judgment that can be entered under one of six emotional distress then i see nothing here again just so i make sure i understand it and need to hear again how you define money recovery under the statute and where that definition comes when you hear it yes your honor the second point that i want to make in response to your honor's question when you asked previously this court need not formally establish explicitly this is exactly what these terms mean the court need only accept that it is a plausible interpretation of the waiver of sovereign immunity that it could mean something other than inclusive of emotional distress damages  that's piled on when we're doing the statutory interpretation of an immunity what does money recovery mean money recovery means the return of sums that were that were lost or expended as a result case and the nordic village case both of those cases concerned efforts by trustees to recover pre partition or post petition payments and that that should have remained in the bankruptcy behalf of the bankruptcy estate that were wrongfully turned over wrongfully paid to to the government and the legislative history i think makes clear that that is what congress was thinking of when it included that language in section one  six and again it excludes any only include money wrongfully paid to the to the trustee or not the trustee or some other creditor or something well i think that that is the most natural reading of the term that's the most natural it doesn't include at all any damages that are awarded in under any other provision well to the extent that it approximates that situation i think that they that they can be included within a money recovery for sure emotional damages other than the other than punitive other than emotional distress damages that might well again your honor i think that we cite in our brief the possibility of recovering attorney's fees for example because again to the extent that a claimant that  a violation of the automatic stay is required to employ counsel and in order to vindicate the right allowed under the protected under the automatic stay that would be a sum that would be expended by that person for those attorneys fees as a result of that the automatic stay so that may be something else that falls within that concept of money recovery but again one of the i don't consider attorney fees to be a form of damages while i think i think your honor that the type of money recovery that we're talking about here is in a sense a type of damages it could be it's a smaller carve out of a type of damages i would also point out in response to your  passed the waiver of sovereign immunity in that case it had sullivan in mind that it was aware of that prior precedent are there are there others or any other sections in the bankruptcy code that use the word and the recovery not that we're aware of your honor no it's a very unique term to bad that one that we can't get any help there it would have made things much easier but again i think the fact that there's a question here ultimately answers the question in this case because again as a waiver of sovereign immunity this court need not ultimately decide that the government's position as as to the interpretation here is the only correct one this court need only decide that is it is a plausible construction of this waiver of sovereign immunity and if it is  construction then this court must rule in favor of preservation of that immunity thank you we agree with the government that this has to be a plausible interpretation of the statute that's what the muni canon requires but it is not plausible to interpret a term out of context in a way that renders multiple other provisions entirely superfluous by the government's own admission for at least one of them my friend says that damages is just there for emphasis but that simply can't be squared with the phrasing of that provision says including an order judgment awarding the money recovery but not including an award of punitive damages and the second sentence again is about costs and fees and why would you limit costs in fees if the recovery doesn't include costs and fees and the government further has n answer to the provisions that again we discuss in our reply brief that pages fifteen to sixteen those other provisions that provide for expenses that are not money wrongfully withheld by the government and not money that was lost as a result of government activities so congress did in an entirely futile act if the i r s is correct they included provisions just to include provisions that they want to weigh the muni for only to eliminate that waiver two paragraphs later with this cramped construction of the term money recovery as often in order village it's true that those dealt with a specific factual scenario but the reasoning of those opinions turned on this broader fundamental distinction between monetary recoveries and equitable recoveries and that's why congress reacted as it did to include this term money recovery which is essentially used interchangeably with money judgment to show that it wanted to have united states is submitted