another carriers in voluntarily serve as a collection agent for t s a pursuant to a provision of the statute that specifically allows for refunds of any fee paid by mistake or any amount paid in excess of that than time are well that you can ask the government that question but that's not what it seems to me their main argument is they express the stated at least a couple places in their brief that their main argument is is the doctor the issue if if the argument is kind of our it's not even clear how that would work it's not a specific time period their argument is essentially whenever we conduct an audit that cuts off your rights to seek a refund but there is no tying period associated with that and i'm not i think there are a couple reasons why that argument goes nowhere the main one is a factual argument there simply wasn't a request for reconsideration or an appeal it's unclear what the t s a even claims this i assume you're referring to the june seventh e mail the united center after the denial it's very clear if you read got entire e mail that all united was doing this is literally from the words in the email requesting t email but if you look at the entire context of the e mail i think it's abundantly clear that they were asking for guidance on whether they could pursue further administrative review and if so how and in fact the e mail contains good the following line says because we are teeth documents but then describes the june e mail as seeking guidance on how to obtain administrative review and then in t s a the response there is no mention of any sort of appeal request for consideration or any denial of anything just in the way t s a described these are items eight through eleven of them and so i don't think there's any plausible argument factually that there is a lack of jurisdiction by the way i would add one other point there's a legal proportion to their argument as well and that is the cases that they cite including the brotherhood of locomotive engineers based on the supreme court in this court's decisions and sandra and tell us are established that this is notion of jurisdiction applies if there is that tying lead request for reconsideration and of course he has a position here is not only was it not timely but even the date the only possible date that they could have applied is a thirty day review period and supposed request for reconsideration in june comes more than thirty days after the supposed or not supposed but the actual denial and it will eighteenth so even under the cases that the government science there's no lack of jurisdiction and it would yield bizarre results and to judge colored your question about the timing of this this is so bizarre the way t said we have a go so in this case the audit period ended on march thirty first of twenty sixteen and sometime after that before august of two sixteen when the audit was actually conducted united was notified that they were going to be article and under t s a says theory united he said twenty six thousand twenty twelve  and twelve it would have had to have done that only a few months later by the end of the audit in in october or so two thousand and twelve there's no i don't know of any statute of limitations that has that sort of indiscriminate period and by the way can solve this problem so simply by from the gating of regulation so back to the wouldn't be the six years under the n p a it could that's the other alternative but but here if if that applies then then the claim is kindly as well cite parties are free to litigate points which were not at issue in first proceeding even though such points might have been tendered and decided so the issue has to actually have come out and been decided and this court's decision in na preclusion applies to needed rid of them and he what that means is that even if the government can show some doubt as to whether or not it looked at whether a refund or appropriate the doubt works in our favor in this cont overall feeling guilty and as noted on the page thirty one of the joint appendix it had remitted six hundred sixty million dollars in fees over this period but there's nowhere in the audit report that says that was a correct amount and in fact yes it wasn't looking at whether or not the amount submitted was correct or overpaid was only looking for an additional liability and that's revealed in the very next sentence on of the joint appendix on page thirty two under the results section where it we found united airlines had no liability due to t s a for incorrect imposition question remains of the it didn't say that the six hundred sixty million was correct it said only that it has no liability which shows that all t s a was looking at was additional liability and by the way their review provision that they don't cite one but they cite this thirty days were tried presume comes from forty nine c f r eighty nine or twenty one we cited that in their opening we're we're not going in taking a refund i don't think so your honor because this is the issue that happened in this course dixon decision in a very different context that the even an agency ha has been ability to come up with procedures claim filing procedure for example so it might deny a valid request a refund on a time basis if you needed from a gated a claim filing deadline but it still is subject to the normal and here actually i think the standard is not even arbitrary capricious or use of discretion i think it's not in accordance with the law because it was acting in a solar year so in the capacity of of like a drug in finding that issue preclusion apply and i think years before yes this is a notion that you would then take what in ts is a view is a completely null effort to even if it were directly an effort to seek administrative review you can say well the so i just i guess i'm just having a little bit of trouble understanding how the agency's position now could be zero but by the way there was it was on it minister of review when this case was of our potential you know any shortfall in what you vote it's we're going to go out and make sure you're not you know gouging us and it's up to you to figure out and hire an auditor or whatever  submit questions when we set out to do our audit if you want to cover your interests that's one possible approach to an audit another possible approaches ok we're going to go out when we've got it we don't have to audit there's lots of it out but when we bought it it's going to be a count clearing for everybody it's going to be bilateral and whatever we find out is you know speak now or forever hold your peace if you had that regime i think your argument would have some legs in terms of you know best place where you think this is rendered clear because there's a lot of ambiguity where t s a communications and regulations talk about what i would characterize as my first potential regime you know we're just trying to cover compliance found united airlines had no liability not that we didn't have any liability to it and when they talked about these you know the transport passengers they were looking at whether any of and whether united paid it claimed that more passengers that flew on united were actually transferred over from other airlines then secondly if i could just describe your process really briefly the orders are out they take a sample of six hundred passenger itineraries which provide all the information the agency needs to know about whether he should collect it who should have been different only in the sense that there is not a final determination of their liability and compliance in the absence of an audit so they want to have the same sort of time for issuers are preferred wresting or refund so what is your position on the time limit in which they must request a refund if they were if it was united and they had a similar kinds of what they thought were overpayment issues six years no limit well there's no time or arising from a final determination because that even apart from the finality concerns we've raised here here's a part of coming in four years after the all of it after the agency's record retention ponds have expired making it very difficult for the they have their own records this is information on until his behalf want us to do that here it seems like all of that is true and you seem to recognise that there is a statutory directive to refund overpayment s so you know if agency recognizes that that's part of their responsibility why not regulation which just is what the rules  certainly would have or and in this case are i will say that again because it is the carriers that are responsible for administering the program in the first instance we don't see a lot of cases in which errors are made in the government's favor we see much many wor surprise me if government compliance officials looked at whether the government was getting its value on its money and if it seemed to be getting windfalls here in there it might just not worry about that and say that's on the counter party to bring that up i mean it just seems like in the in the contracting world you know sometimes you think well good we'll you know the agency discretion as to whether that or consider on and the very same policy considerations we've articulated in the brief interest in finality the limitation on the agency's resource the inability to document these things reopening the past issues this is a different issue and so it's the same thing if you have to have that kind bar only applies if there is if these are if there is an issue preclusion we say there isn't and so you preclusion analysis and so or was there a final decision then on your claim and if there was it's time barred if there was an it's not exactly but we didn't make any such claim they happened to look at it under payment of a couple dollars here realise how some of the systems were set up which is what what what happened here i believe one of the other minor points i want to make was is about the six hundred and mr clare said that oh well this this issue in the six hundred that's not true we submitted the evidence that we submitted the filing the claim for a refund that was submitted on april eighth contained not a sampling literally every data on every single ticket to which we thought there was an overpayment on this involuntary passengers so there's no issue about the records not being there we have to preserve the records and have them present them to the government on the other hand if the government thinks well we're  overlap if they have looked at that it's those that pay sampled for overpayment wouldn't some of those records have to have enough information to have made the kinds of points that you make in your fuller direct yes they  so these issues were there for everybody to see if somebody had looked very carefully at them but nobody understood that that was the purpose of this audit obviously if anybody had we would have looked at this and the final point i wanted to make was mr clear's comment that this would be preposterous to work at the way you were suggesting well this is the way the i r s works this is the way almost every state works and this is the way other agencies work that have similar fees and i mention th twice now swisher case that was in the federal circuit customs added a statute of limitations after this case learning the lesson can be found it one thousand c f r twenty four or twenty four efore a little too w case also talks about the fact that customs has the right to audit and in fact does an audit pursuant to a provision that is identical to or nearly identical to the one in this case in in the customs side this