argued that there is just simply no congressional authority for it and in the court there now even if there was a congressional authority for that kind of statutory defense we would argue that the that the common law of their is being used to figure out the nature of the relief that is available to someone yesterday but that's different than determining the elements or whether there's a defen because for bringing the claim depending on the relief i bring a certain raise i bring the question just occurred to relief i don't have to show those things but now i seek a different type of relief damages i do have to show right but i'm saying the elements of the tour don't seem to require a showing of men or us and no probable cause and that's why i can get relief for declaratory judgment without meeting those elements  the elements if the elements included probable cause no probable cause and malice i wouldn't be able to get a declaratory judgment without meeting those elements if they were elements of the tort i couldn't get for yet under the doctrine it appears that i can get the relief of a declaratory judgment without showing those things which makes me think those things are entering into the equation only as a way of determining because an action that common law for damages required additional additional things declaratory judgment is something separate from the damages action rights or what i'm saying here is what would be the reason they have malice and probable cause in the context of a attachment case why would i do the same thing here since this looks so much like that first we don't think it looks so much like that your honor if you look at cases like tort are but we think the supreme court has said that in that analysis there are certain things that a court should do it should look to the underlying constitutional violation st if that get in then they should look for the common law to see if there's a similar you look down the line constitutional violation and then if you look to the common law and there are similar towards then you can adopt i want to those torture damages claims right in our case there just isn't a common law analog so we think  conversion i mean our whole argument is that there is no common law and all so you should look for the st amendment for determining what what are what so required for our constitutional case but just last month by the th circuit for the proposition that private parties who invoke presumptively valid states laws are not subject to monetary damages as a remedy for section one hundred and eighty three dollars and the reason is this even those justices who in the luger case embraced a reading of section one hundred and eighty three days under color of state law a clause that was broad enough to him to reach private parties whose state action consisted simply of  king state statutes even those justices recoiled at the basic injustice of holding back type of private party liable in damages where there was no fall so why i mean excuse me i'm leader of the case that sort of expects standard private party liability in the st place right then in the same breath there's that footnote twenty three where the court says that the concerns of the dissent which were about the basic fa three different terms that are being thrown around and i'm having trouble this entire one is elements one is defense and one is robbery if you i'm just trying to figure out what position the essential difference between us which is that which is that the argument that the plaintiffs have tried to make which is that because of malice and lack of probable cause are not elements of a st amendment violation they are therefore irrelevant even term monetary damages liability and we responded to that point in our brief by saying exactly what the court has said that was exactly and equally true in the case of all of the procedural to process cases that came before the court including why it and live here and then the early generation of appellate court decisions like you don't need to show malice or lack of probable cause to bring an injunction action against a state statute that doesn't provide fair notice and procedural due process and you can name a defendant a private party who you claim intends to invoke that unlawful statute in the future you can sue them both together and you could bring this successful procedural due process claim just as you can bring a successful prospective client of the kind here what you can't do include damages so why should i be running around for some limitation on that textual charade and the statute says that every person who under color of law and so forth subjects another person to the deprivation of right shall be liable to the person for the party international law suit in equity or other proper proceeded it doesn't say exactly what those legal remedies are in the statute and the logic of the a defense then that are off and so the question here that would go a little bit of trouble with this is this is such an unusual action it's not as if we knew all sins against official or government says here are the specific causes of action here's the three kinds of people could provide you know four kinds of defenses because it's a very general majestic broad statute the court going back to the fifty's when it st recognized legislative immunity asked the question seventy that would be shocking or surprising for congress to have abandoned silently and if you look at it that way then that is why i think there has been such uniformity because justice kennedy i think developed  point in the supreme court cases in his concurrence and why it where he said that common law a private party relying on a presumptively valid state statute was not responsible in damages for the consequences earnestly following  state law and that is exactly what is going on here there is no precedent for the idea and i think the proper question to ask by the way this is i think the counter to the hypothetical the court should ask is an eight consequences if someone in both a statute openly and honestly son and security approval of the government for the transfer of money or property in question and do so in reliance on a state law that was presumed to be valid person an eight hundred and seventy subject to any kind of tort action for that innocent conduct and i think the answer is no for certainly there's no evidence that such a person would be found liable that congress would have assumed that such a person to be held liable for that certainly would that the thrust of justice kennedy's concurrence and why and the courts have all accepted that conversion is not a tort that typically acting and that so that alone i think disqualifies conversions the proper tour the best horses most of the courts have struggled with this issue have come to the determined is i  guess either malicious prosecution or abuse of process in different states those how do you know somewhat different elements but what they have in common is that they they involve the situation where the defendant is looking for governmental assistance to accomplish you know a change in position between the defendant and the plaintiff and if you leave out that element then you're not being faithful to the unique nature of the  just it's relevant only to the question what is the defense mechanism a to a certain form really i think the question is is this whether the consequences of a particular kind of conduct we've included payment of monetary liabilities as opposed to some prospective order to stop doing whatever it is that was found by the court to be offensive so you know our position is that you have to look back to that end you're really comparing apples and oranges because in our system of government we normally encourage the person not to resort to self help if they want to you  know affect sound change in a property race relationships between themselves and someone else we encourage them to do it through orderly process the unions here didn't as i said before you know there's no allegation of unions on their own we're trying to take money from agency fee payers had they done that we wouldn't the constitution would even be implicated but they did it is through word of the processes of walk they bargain for and secured the right for these agency fees so i mean that i think is the critical point i think what makes this case a particularly strong case for application of a good faith defense is that is that here we were coursework relying simply on a present of we valid untested statute which is what merely relying on you know statutes that had been declared valid by the highest court in the land they were invoking statutes and using the money collected for the purpose under state law requirement that they use their money for the for the benefit of everyone in the unit member nonmember a life so be highly problematic as this as the nd circuit recognizing a lot of the lower courts have recognized to say that you know a private party who relied on state law should discords monies that were used used and expanded already they're not sitting in a vault you know that they can be returned to their bodies and expended for the you know under statutes that required the union to expend the money for the benefit of the of the very class that the plaintiffs are purporting to represent here so you know my time is running out if i want to answer any questions that the court others thank you thank you and the court did not do that no i think even though it was not obvious that the claim was for abuse of process it was for procedural due process violation but the court thought that a pitch i get damages against a private party for that we should look and see whether that's the kind of thing conversation seventy one dollars would have expected one way to test that proposition is let's look at some common law claims which people sought money damages against people for how they use prices even in those contexts are only get for when there was sharing of malice or probable cause so will apply that is a limitation for your ability to get that damages relief even though that is not an element of the constitutional violation for which the