have exclusive jurisdiction over some part of the data that's at issue here and both of them say that the other court is the one that has it should take jurisdiction over it with the result that neither poor and no poor state jurisdiction over a field of commercial constitutional issue that you're raising the if you take the decision of the four panel to its to its ultimate conclusion which i think it will which will come up in the course of we're going to talk about the  i read it that way i think what what you have here is a situation if the if the breach of contract claim is based on a regulatory violation you have to go first to the d c circuit to find out whether there was a regulatory violation ok and if there was a regulatory violation and presumably the d c circuit were gravity but the d c circuit would not address the contractors well it may be that if you were to convince the d c circuit that there was a regulatory violation and you might be able to come back to the court of federal claims for a contract remedy that nobody saying as i understand it that if there if there was a regulatory violation which led to a breach of contract that the damages remedy if there is one doesn't come in the court of federal  no one's suggesting that the damages whether you have a property and tears quite intact or property under the law and that depends on whether there was an administrative determination that  he's pointing to is the question of whether interview of the d c circuit hoping that there was no violation of the c c s procedures you don't have either a contract right or a property interest that could possibly be entered you might have to say held there was a violation of the f c c process but the d c circuit did you in on that issue and the still have takings claim that the d c circuit seven action was authorized but since you were only asserting the contract and the point of your contract claim is that there was a regulatory violation in the d c circuit has said there was no regulatory but it was a contractual dispute were it was a little hard it's often worth what i wanted it's a crisis that wasn't the theory wasn't that the better regulatory violation which led to a violation of the contract that was a separate licensee agreement between go first to the d c circuit and you're out of court and once you succeed there all that that's where i'm disagreeing with your respect we're just like i think conceivably make no bones about what we want to hear in the first instance was the license the license has value you know apart from its monetary value and that's why we target it worth of deals with eventually the supreme court we want to license we now or we can't get the license that's been decided against us but we do have the comfort of the fact that we had a  and they could make that determination even if they felt that we had a contract with the f c c and even if they felt that a contract that they would say yes the f c c in its wisdom in pursuing the public interest awarded the license to somebody else now if they had a contract with you to the contrary you can take back that that case to the court of federal claims and get it resolved very tough of damages but that doesn't affect the d c circuit decision but the regulatory decision of the f c c it was still proper for whatever reason well but the for whatever reason seems to me to be a problem for you in this case because what the d c circuit said i understand it correctly is that your contention that ate one of the parties said to be auction should not have been allowed to participate was exactly and that's the predicate for your for your contract claim that's exactly what the d c circuit said time so it seems to me your whole contract right is tied up with the legal obligation of the f c c to kick liberty out if they don't have a family certificate filed on time all they said was it was not unreasonable for the f c c to do with that and i'm bound by that i accept that but that doesn't mean that in fact there was a contract with the f c c with my client who would employ yes predicated what i'm saying is there was i'm saying there's no regulatory violation that that's been decided that's final that we can't challenge it the example i want to give you that may clarify your question judge starr who's listening to this that this is a real world example earlier this year the f c c had an option they sold seven hundred megahertz licenses and at the end of the day the licenses had almost all been bought by big companies the everybody complied with the terms of the auction the big companies pay their money and there came a house from congress and from some of the public interest groups and the fact that the auction had been not conducted properly because the intent of congress was that small companies should get the licenses now let's say that the f c c had decided at this point after the auction was over that yeah you know maybe maybe we should have given these licenses to small companies instead of big companies that actually was presumably they could have decided that the court of the d c circuit could have said  circuit things that you can take these contractor taken sklansky for a federal claims and the court and it claims things that can ok but make sure you answer the part of the question as to whether you distinguish yes so that that was my preference and i think it still is what i arguing that the government had a duty the f c c had a duty fairness or conformance with its own regulations in the in the auction and that that was reached by their not requiring think that there's any contract claim that survives the d c circuit judicial review of the c c s action in any of these kinds of cases that is if someone is complaining that the license should have been granted to them and there was it was not granted to them because of a violation of the rules applicable to the  n is there a remedy to go to the d c circuit in a forward to be judicial review proceeding and no damages remedy at all are you saying that the damages remedy is separate it belongs in the d c circuit in some somewhere between the district court in the court of appeals or are you saying that any damages recovery has to wait until after the d c circuit rules and if they rule challenge the hypothetically presented there is no remedy for damages because the auction process does not create contract between the f c c in each on that option in that because the contract right that would normally arise in a calm in a common law auction type situation is that is that your contention in part right i think part of it the response to this is that the whole licensing and be that is to say it's not a tucker act case because tucker actually is over in the court of federal claims but why why doesn't your position force you into having to concede that  there are contract damages if there is a contract as you insist there is between the winning bidder and the government for some purposes why can't the winning bidder turn around and say ok even i want damages and i want the damages  honest the directness forthrightness administrative procedure and so on that there was an obligation on the government to hold the auction room accordance with the terms that it held out and people essentially recherche derisive challenge to a regulatory action as breach of contract simply to in an attempt to get into a separate form there would be no reason clearly correct or i think in that case we would still be looking at for it to be which would would preclude a claim in the district court and i think your hypothetical sort of point to the fiction that serves as the basis of built morse claims here which is they were successful better on this for this license and the only way you can or we can accept that they have a contract is up and implied in fact it brings us to that just to cut to the chase where i think you're going to tell me if you're not it brings us to the problem of what do we do about the fact that the d c circuit is addressed the claim albeit in a an a p a review sitting with the a p a review standards but the claim that liberty should not have been allowed to be considered as a qualifying bit or do you think that that response to mr evans's argument that well it's a different standard it's one thing to say that something is not arbitrary capricious or unreasonable it's another thing to say that there simply isn't a country right period to that something that doesn't have the circuit was not proving that the agency was correct in their in their absolute sense all it was hoping was that what they did was not reasonable it was not arbitrary capricious that's a much lower standard than saying it you would have to say in a contract setting what they did is correct and lawful  well i guess i think this goes back to the first question which is is there a contract when you are an unsuccessful better at all and the government's been good but again let's assume that we get over that and go straight to the question of collateral estop why is the determination the d c circuit collateral estoppel against biltmore in this action assuming there's a contract assuming there's a contract  you know what would essentially be doing is opening the door to a very inconsistent terminations well that's true but but you do understand the argument about the different standards having an effect on collateral stop i mean o j simpson could take the case found out to his dismay that getting acquitted in a criminal case did not create a collateral stoppel on his behalf setting aside the fact that different parties involved but it it does not create a collateral stoppel in a civil case because of the different standards ok same thing the argument is here because you have a more rigorous standard and therefore the agency might be right that what they did was jurisdiction right and we can consider this right it's not a contract they have essentially what they have done is it's brought up a government right right a big protest and examining what what the agency did there is no different standard than the fact it's exactly the same they've got to give the license to the person that makes them i just want to tell you two issues or two things that came up in the course of the government's discussion first of all they seem to be taking a very broad view of the jurisdiction granted to the to the d c circuit  be saying that it's exclusive and that was sort of what i thought that's the way i interpreted the fourteenth panels reading for it to be but we know that that reading can't possibly be correct because first of all the d c circuit says if there's a remedy is presumed available unless congress has specifically taken away that remedy by a particular an act in it and they have not done that with respect to the communications act so at least the d c circuit thinks that that their court of federal cla say that in the case of a contract situation like this there were claims that also have jurisdiction the other thing i want to point out is i think the paradigm that we really need to be looking at