department concedes that they owe the members of the class whatever the amounts are later to be determined pursuant to a legal obligation o p m acknowledged as i have never understood o p m to be in the realm of a charitable institution so presumably either there is a legal obligation had taken the position that the two thousand and two act did not apply retroactively the amas p p disagreed with that in the letterman decision in a non presidential decision and that's where the distinction between a legal obligation or a legal concession and what o p m as a policy matter decided to do and it knowledge is that the board did rule this way in a case that had you know quite a the tortures procedural history of this case that the office of personnel management that the government had a good knowledge that it was obligated i presume legally to make these payments whatever amount them way judge hornyak did opine that in his view that there might be judicial a stoppel but that but we disagree with that and we have made clear there are many places in the record if you look we put in that he did find it to be judicial stoppel and that was based upon his understanding his reading his understanding of the record then an acknowledgment of such an who i i believe that he did not read certain representations and the case that way and earlier on in the case we have repeatedly including in the join appendix and defendant's response to the statement of material facts that are not in dispute and there are a number of places in the record in the pleadings where o p m has made it clear that yes w and i do want to make clear your honor that we are not disputing now that if this court were to rule for us in this appeal and hold that the district court lacks jurisdiction and therefore the notice and hold back borders need to be bank aided o p m will go forward with recalculation and payment let me find my question is o p m required to provide notice to the class  that's what the class action is on no your honor it is not legally required to provide notice however o p m did and that the district court here lacked jurisdiction to even make that determination that's a legal argument between us and the plaintiffs i mean that that determination was made by the the district court i won't say early on but a long way in summary judgment motion i guess report right yes yes and then that as an after the rule the legal ruling on the summary judgment motion the court then entered the st of the notice orders from which we appeal  then also in addition even though the court's underlying legal ruling the court here was attempting to carve out these notice claims but the c s array precludes claims claims in their entirety that you can't carve out that aspect of their claim there the underlying belief that the plaintiffs want to hear the notice is a means to get we calculation and payment and it this attempt at carve out circumstance the know we're all here talking about these procedural niceties and meantime people in the class are dying and you know could really use the money you were in the justice business you are to this thing or keep dragging on supplemental brief we stated in district court that we that the agency the agency has as you know already sent out over seven thousand notices and it is you know you know we wanted nice but there has been a lot of process yet here including the sending of notice and i want to and i want to give my my colleague judge gives a chance to ask a question because he has one but let me just put one point of emphasis on judge m had it did make the policy decision that's right and actually had the gun for people that it had identified that would be eligible it had actually begun  notice it ordered and this is part of the notice itself says to the potential class members that the court has ordered o p m to hold back thirty percent of any of the payments that if the person is determined eligible and it's going to receive a payment of the benefits do then o p m would be required by the district courts would withhold thirty percent now st we think that proves wyvis the district court carved out for jurisdiction fails it shows that the court is trying to direct how o p m pays out money but deliberate that depends on how we conceptualize the case so at pelleas understand this is a case about sending out notice the notices when help that's done the cat's out of the bag and your contention is there's more to go on afterwards if we do not find this case what do you do afterwards are you planning to send out supplemental notices do you want to do to do other things that would be affected by this ruling  so generally and then number two if the supplemental notices and other things you want to do relate to the whole back of attorneys fees why isn't your case captured by attorneys fees can't make it otherwise moot normal administrative process is because if and there are the cases it's true that some interlocutory appeals when junctions become moo if the party complies with the injunction and there is no more effective relief the court can grant but here as we pointed out then the notice is unsouled actually state that o would have to hold back thirty percent of the payments that can be changed if they're in list one a very very large percentage of the people would be eligible for the recalculate older sorters though how actually complied with the order terms including the requirement that it notify its own employees that had been held in contempt the court said it could now notify its employees that that was her purse and he if the agency send someone a final determination saying you know here's a payment they gerent you we found you're eligible here's a payment you're entitled to and for not withholding thirty percent that's further notice would say but as i said one of the things the agency plans to do if the district court orders were vacated is to go forward with the  and that final determination that sent to a claimant would show and say that nothing was taken out of that and that in of itself corrects the previous corrects the previous notice responding to what your counsel for d o j and pam said you know they have they in response to the st question they were asked they denied an obligation to do to actually make those payments right and you know in response although they're saying that well if this case goes away they'll do that they did the exact same thing at the district court where they were trying to get this case and then they went through and when they and you know they said hey look we're go argue to the district court that no dispute exists between the parties so they say that they they they did argue that there was no no dispute between the parties and that they would they would provide the notice that was granted there was no dispute as the point out that there are there are and physicians assistants who are also covered by the same enhancement act that's retroactive and there is no dispute that they are out that there was no reason that o p m couldn't have paid them in the decade since it had adopted its policy and they have they haven't identified or notified those people if you had them sitting here today and saying oh they would do this but they've had ten years to do that for individuals where there has been no barrier and they haven't so you know there's a lot of people that they have to deal with calculated because if you go through our records i guess that well i mean respectfully that was that was an argument that they had made the beginning of the case but in fact within a few months they began admitting that they could correct if i read your position correctly you argued that the two notice workers merely clarify an earlier order that did constitute identify notify the class and directed that to submit a plan stating what those was not a yes or down at pretty important question as to whether or not it actually was of that order actually granted injunctive relief or whether merely were clarified so yes it did grant injunctive relief and you know that require them to submit a plan but until they had the plan it's going to be these lists and this kind of notice they don't and so that that part part of the list one notice order has been superseded and it just required saluted by one but your adversaries contention is they'd like to send out further notices if they send out further notices that were they were bitten by the district court by these orders to send out the later notices they would like to send out saying no we're not going to hold back we're looking in those those notices that says they can't they can't do that now with respect to whether are but they don't have the district courts imprimatur to to do that and you know what they're seeking from us the removal of the ruling that they construe as forbidding them now the question is are you going to concede no that ruling doesn't prevent them from doing that in which case you're taking the position it's moved or yes the ruling prevents them from sending these things in which case it's not what your position opposition is that those goes not noticed orders  have been sent out and any distance would you think would your position with they be in violation of these orders if they sent out notices saying no we're not going to withhold no we're not going to hold back they would be in violation of linked in threes language saying that they were that they were required to hold back which has a very clear command language that they did not appeal all that that whole back order is a misnomer because all it does is set the percentage there's no command language in that in that order at all ok but if they sent out the notices the notices themselves you don't you take the position they're not forbidding to send out a later seven notices i think the position that they have they are permitted to send then how can you know how can it be moot if they are forbidden to send  is it limits what is permitted and we did three has language in it which says specifically ready that the limitations on communications between o p m and the class are specifically lifted for the later notice orders that are sent out  but even if you were to breach that issue you know that you know they ok argument is baseless well it's not it's not logical that if you don't if you probably have no it's over substantive claims that you you know that you could have a common fund feel bored in a case like this and the i think you've got a i see a basic conceptual problem here for you to have jurisdiction it has to be the case that this procedures for how did you to keep the claims are different from the war what benefits are entitled to which would have to go through to be able to so that it's the basis of jurisdiction this is something different from the kinds of benefits claims under the statute that have to go there but if this is not a belt what benefits how can they be a common fund if this is about the procedures for adjudicating and not about the corpus of money that you're ultimately entitled to worst the fund in the language one of the d c circuit cases where in this in this area some version of the cows theory can apply right here what we had was we have a class there is you know you know we through this lawsuit was discovered that they do have this policy which applies to everybody and you know as a result of identification really for me what o p m has said this is in their you know is in the record once they know about people and they have no they have no ability to pay them otherwise so this is a highly unusual case putting aside its crown ology because we have we have a class that has been certified and yet it is a class  apparently for no purposes other than to provide notice actually of course under twenty three c is would narrowly procedural aspect of every class action so the class action is occurring in the district court there can be no common fund here again and there absolutely can be a common power so so as a result so if you look at this case what happens is there is this a common find is that cases right which which recognize that you can basically you can where you create a fund for a group of people that they're entitled meant to reimburse and it costs right that's you know  and you know the other cases that we've cited in you know mills versus electrolytic those cases so and you don't have to bring you know that the law is clear in those cases that you don't have to bring the fund into court it doesn't have to be in court for because what happened is as a result of you know and they have o p m admitted this in the brief below as a result of identification once o p m knows that these people are members of the class and subject to the enhanced act they must we calculate their claims even can't get it there and that you know under the standards you know in in elgin right thunder bay free enterprise and you know where you know the basically there is where it is discernible from the factors that congress would not intend for instance where there is you and seventy five dollars the nurses are clear what you get is that o p m say ok you're going to be you know entitled to you get this notice you're likely entitled we're going to open the file and render a decision right and that's what the nurses say there's going thank you or higher there is a quote we have from the elgin decision in our reply brief that i think is directly on point here and reflects some of the questions your honor was asking opposing counsel the supreme court rejected an analogous argument in that case about the constitutional claims in that case being wholly collateral and said constitutional claims are the vehicle by which the playing of seek to reverse the removal decisions to return to federal employment and to receive the compensation they would have this is very is that what plaintiffs are seeking here is the recalculation and payment and in fact the notices themselves if you look at j and forty eight says what if i disagree with o p m three calculation decision you have a right to challenge o p m decision on your eligibility for an additional annuity in the normal administrative process including by appealing a final agency decision to the p that means that if o p m does a file review and says oh this person actually doesn't have part time service or this person does have part time service but was previously compensated for that there could be all sorts of things and those people would even pursuant to these notices be going to the m s p be it just it's the type of piecemeal litigation that the c complaint your honor it is seeking we calculation and payment as well as notice is a means by which to get there i'd also refer your honor to this court's i'll be unpublished the very recent decision in la where the plaintiff there are asserting that his retirement benefit claim was was not precluded by the c s riker's he was just alleging negligence and how the agency applied it and that was an a claim in his view but this court rejected that and cited all of the same cases where citing here and we also think the district court didn't have the benefit of this court's decision in you can't you can no longer get injunctive relief or a constitutional claim and hear the district court was basing this notice and hold back orders in part on and it's binding on the equal protection claim could i ask you to respond your opponent's position is that the only thing that prevents you from sending out submittal notices is not the notice orders below but it's the whole back of it's we've been three it's  interfering with its ordinary relationship with the new additions and requiring the agency to say that it is going to do something that it thinks is illegal he said that but it has no lingering effects and whether there is always subject to the objections that o p m had to jurisdiction and in the joint status report there are footnotes included in each one where o p m preserved its objections and in the internet and so just by and i think the impact if your honor held that the notice orders were repealed because the of the previous willing that would encourage premature appeals in fact the parties are still disagreeing or notice and that's another reason this whole issue is not even with respect to just knew this is certainly not moot because there is an ongoing case or controversy between the parties about extent of notice but in any event the the notice orders are injunctive orders that were in portugal by content and in that and once and that those were appealed in conjunction with the whole back order and practice part of the notice required that the agency objecting to that what the agency is seeking now is those orders to be bake aided so congress passed in the department of veterans affairs health care programs and hansen that january twenty three two thousand and of providing relief to various people has passed away i mean while this is not the kind of case based on its history that i can think that i can say that i can even suggest to be subject to  to some kind of negotiation settlement mediation it apparently is going to be for this court to do what it can to move the matter fo that however in my humble opinion is regrettable at this point in time and lastly prior to recess