violated by defendant's e s e a a ruling which is not appealed and therefore final seek on this appeal to obtain the same monetary relief provided to the other named class so the names class representatives another ruling which is on the people on appealed and therefore final in the form of nominal damages further all nonmembers seek an appropriate appropriately calculated award of nominal damages specifically i don't warts each which signifies all the constitutional violations perpetrated upon them by the union it's not at all clear that any court has ever denied nominal damages to absent class members in a case where that has been or certainly none of the cases cited by the union it's briefs clearly stand for that proposition energy to lease to courts have reviewed decisions and expressed no problem with that i think whoa specifically in my opinion how specifically affirm there were a nominal damages class members this court reviewed wagner and noted the fact particularly relied on authority i think the court reasoned it from the principle that each individual suffered damage and avram certainly that i think that's probably the decision it's closest  closest on our request for a dollar representing each separate violation what's the standard of review here for this we believe that there's a legal question and title months of damages for each class member we believe i standard the problem here is that the district court specially created a second class and second class in it with all of the negative connotations that go along with attributing to a group or an individual second class status these people couldn't write individual actions were in this case not brought as a class action they each could have sued and frankly they could have sued in virtually any court in the state of california we're talking about a class of thirty seven thousand state employees i'm sure they were i'm sure that some of them reside in every federal district it's almost certain that some of them reside in every city and county in the state of california each of them could have brought in individual action and in each of those cases under this circuit's law each of those individuals would have been entitled to an award of nominal damages for the violations of their procedural due process rights so by denying to ask the class members nominal damages the amicus point that the union was somehow immune from an award of attorney's fees it was some kind of union exception the normal principles of law and in this case the union is that's in essence arguing well in particular the point is to address the wrong and here the wrong at least thirty six thousand nine hundred ninety three of them take nothing only only the seven named plaintiffs taking i think the problem is here that it defies the rule and rules enabling acts and far on diminishing substantive rights because you can't i don't think the court can get around the question around the by the in fact by the union or in any of the system making of this court that a procedural due process violation in titles one to at least nominal damages and if that principle i don't think can be diminished if a party comes in having victimized a large class of individuals and you say well we can avoid that i mean the problem is it's the incentives that would be created under these circumstances would be perverse instead of me or my one of my colleagues or other attorneys coming in and saying well we have a large class here we should we should certify class because because of all reason twenty three it's the force these are who's going to come in because if it's not a class action all of those individuals are going to have individual claims and there's going to be if you're going to in enabling acts prohibition the decision below it denies substantive rights by application of rule twenty three and i cannot stand questions to be sure that i suppose there is a point where nominal damages aggregated together becomes substantial to the person who has to pay them out let's face it it's it's an economic harm many economists will tell you that it's minimal economic harm but it is economic harm so at that point we say well ok there's substantial enough then then we're just talking about a question of degree and i don't think that application of rule twenty three and coupled with the rules enabling act permits that type of analysis where you're talking about state of the defendant c s yeah it was lucky enough to have a large victim going from having that large victim i mean if the union is going to argue that it's substantial then it seems to me it's an important for this court to measure that against the benefit derived by the union from its behavior and that benefit was huge huge in comparison to what we seek whether it is one dollar for each class member or seventy up to seven thousand dollars for each class member for each separate violation is earning  the symbolism do we trivialize the who trivialize the rights issue by denying to absent class members these people probably didn't even get the piece of paper the judgment that said the union violated their rights or times and the notion that one of the notions race below and i think it's worth probably considering at this time is the you know the problems with distribution all it's going to cost  much to distribute one dollar or seventeen dollars asset class members this bought from it's almost certainly for most members of the class these are people still employed by the state of california people who are still subject to the seizures to refund the money to them start with the question of what phenomenal what the symbolism is in the nominal damages the symbolism isn't the dollar the symbolism is the union having to open up its wallet and take something out and give it to the pla some money to the city to the point and so the question of how you calculate that amount has to be consistent with carrie and don't we have to start with what is the purpose of if you have a class of twenty it might not be so bad if you have a class of twenty might not get certified either that's what i see the whole point is once it's certified it seems to me your goose is cooked i mean everything to him a class that's the point of the class action everybody who's in the class will get whatever damage he or she is entitled to and the point is that they're not entitled to a dollar apiece as i've been trying to make this point they're entitled to diminish this really and they're entitled to  it has to be objective it has to be objective because otherwise it is going to become get the first crack at at a few more and if any is appropriate the district court basically nullified the ninth circuit rule and took that decision away from the panel and there's no basis for what it  got out of this litigation and this is this is really all in the in the opinion from the first panel plaintiffs wanted the auditor's report in the hudson noticed what they got was a line in the opinion saying matter of law every member of the class has been nominally injured this entitle to nominal damage then we also have to set aside the attorney's fees award too don't we have the judge we compute the fees that would they got the line in the first opinion that the auditors verification has to be in the hudson notice basically what that means is that the union's notice was to practice because there wasn't a signature from the auditor on it saying these are my numbers it's a pretty technical result for them and so for warning them twenty five compensating them for twenty five percent of their charges already claimed it couldn't separate out those other fifty percent of hours based on plaintiffs time records so it took that fifty percent and it took this ratio of monetary relief sought to monetary relief attained which of course is would adequately reflect the very limited results obtained by plaintiffs in the case which would be to compensate five percent of that fifty percent of our the last point i wanted