johnson for plaintiff the pellets you might want to lift the microphone up a little bit so thank you ok now is a reasonable podium by the switch on the right there plaintiffs in this case sued to challenge settlement agreements that were extracted by the city of new york and nearly ratified by the state courts plaintiffs were never in a position to file an to be clear plaintiffs in this case wouldn't be seeking to amend the judgment they would be seeking to change the settlement agreement that all the settlement agreement is embodied in the judgment you could get relief from the state court i assume by having the state court strike those provisions from the judgment now and the other hand and is it your contention that if that happened you would still be bound by the settlement agreement that was independently entered or exactly your  the settlement as a contract between the parties that exists independent from the judgment there actually are state court cases for instance in the context of divorce and settlement agreements separation agreements where people seek to seek to modify the terms of the settlement agreement by so it's not actually clear that we could have brought these claims or that plane is going to brought these claims through a motion to invent a judgment and i understand the city to be taking the position that he couldn't have been forced the provisions in the settlement agreement that you object to absent the court order and that it really had no effect and so we still should really focus on the court order and its effect here in the context of the record feltman argument what's your response to that well i think so two of the three agreements actually provided that they become effective immediately upon the agreement of the parties and we cited those pages of the record in our brief as to the third it was can to the agreement is essentially contingent on the external all events that the agreement be approved by the court but that's no different for instance in a green to buy a house that might be contingent on approval of a mortgage but that doesn't mean that it's anything other than a contract and there stood still the city to be saying that it couldn't ha court in order to enforce them is that mistaken i don't think that's accurate and this isn't a contract between the parties and it's in forcible as a contract and the state courts are quite clear about that for instance we cite the case of thirty seven zero one thirty first avenue realty corporation this was a case that actually in a state court case that involved a settlement of a nuisance case like the settlements here and the question in that case  was you know what is the reclusive rescue to cause a back to such a settlement and the state courts make clear that in that case that the settlement agreement had no conclusive effect and it was entitle to respect obviously as a contract between the parties but it c a motion the same action they could also file i think is a new action but the key point i think for purposes of record feldman is that these are contracts and what we have done is we filed a suit seeking to challenge some relief you're asking for in this case is what exactly so we're seeking really three things the first is an award a nominal damages which i think is important because the city concedes that plaintiff merits of this are not before us but i was a little bit puzzled at the idea that asking someone to waive a constitutional right as part of a traditional settlement is unconstitutional being a criminal lawyer i see that happen every day in the form of plea bargaining rights somebody can give up their right to a jury trial and everything that goes with it and that's a condition of getting some benefit from the  prosecutor from the government in the form of reduced charges how is this different from that was you said the merits were not before the court but it i would for instance direct the court to the case of united states  versus olivera switch we cited in our papers in the court below in that case this court addressed the application of unconstitutional conditions doctrine to plea bargaining and it said for instance that if the defendant was required as a condition of a to give up his right to a lawyer and from that point forward he could never again have a lawyer in the future in the view not related to the particular cases right distinction or even in that particular case i think that if you were to say you can't have a lawyer in appeal it involves claims that could not have been raised through an appeal of the appeal been brought it would have been dismissed for lack of jurisdiction as the doctrine simply cannot be applied to bar that type of a claim it's a very narrow would be barred by river for i think it's possible for us in the context of a class action settlement that actually is approved by the court where if you had a party who had litigated objections to the class action settlement on the merits and then tried to challenge that judgment in the federal courts i think that might trigger ricker feldman for instance you know but i think you really have to look at the mechanics of how it works in the state court which is ultimately not surprising because this is a doct that come up through the state courts and ask a quick question so could you have also just waited rather than going back and applying to the distant to the state court here for a modification of the settlement agreement could you just waited until the city trying to enforce one of the conditions that you see is unconstitutional and protested in that context and of in for some an action that it wasn't unconstitutional condition unconstitutionally extracted in the agreement and pursued those claims in state court later on what i think the problem with that was would be that in order to do that we would have the plaintiffs and would not only would have had to wait they would have actually had to go out and violate these agreements and that's right now plaintiffs are complying with these agreements  they are excluding their family members members from their homes their son show has installed the wire the warrantless surveillance systems that are he's required to install so you know they are suffering these costs you know harms right now and they don't want to violate these agreements because if they did so they'd be at risk of being evicted from their homes or their business and what the supreme court said in the middle me in case which was a pre enforcement challenge to a contract was a just like with statutes i was contract as well you don't have to violate a contract in order to get the case into court you can come to court and essentially bring a pre enforcement challenge to that contract and i thought you were also going to say and maybe i'm mistaken that this is a position you might take that even if you were an available and equivalent remedy to someone to do this in some state court litigation or either affirmative or defensive that's not what mark or feldman is about in the sense that there are often cases where there are parallel litigations in state in federal court and the state court litigation might be equally effective if successful but the fact that things applied too broadly is that essentially sweeps aside these much more narrow doctrine such as rescue a cottage which the city has never argued here and abstention and all these other things that are ways of adjusting the relationship between state and federal so please the court on behalf of the city my name is john moore this case i think represents a route a disagreement as to what the record feldman doctrine stands for and position that plaintiffs are advocating is one that entirely in the supreme court the reason that record feldman applies is not to make sure that the supreme court gets first dibs on those cases it's because the federal district court just don't have the jurisdiction to consider appellate cases from state court stated that they went into effect without even a requirement so ordered by the by the state court and reading those who think that the plaintiffs were bound by them absent any state action why doesn't that just  from other work or help and purview two points the first is that there's at least one plaintiff that just doesn't apply to and so one of their plaintiffs even if that's the saving grace in the complaint in the facts then that doesn't apply to one of their three plaintiffs for those other court is that there was a pending civil enforcement action before the court had at agreement and in that case had to go back to the court just dismissed correct but though this was in  form of that settlement agreement the fact i think that the agreement was taken to the court in order to be so ordered as opposed to simply dismissed with there being a private contract set aside i think distinguishes that from from cases in which the court could have rather the city could have continued to enforce these beyond that point without any state court action but excuse me more i mean isn't that just your choice that you your client the city chose to go to the  court and ask for it to be so ordered in the sense that if you didn't do that if you simply made a private agreement and i'm guessing that this happens frequently when it's just a matter of money changing hands a case get s money changes hands from one side to the other and then the point of just comes to court and says hey we're done because we've worked it out ourselves and it goes away in a case where one party is agreeing to do something in the future sometimes the party that extract that concession would like to have an additional in forstmann string to their bow when they ask the court to so order it some remedies would only be available based on that so ordering i assume you could not have mr buzz for example held in contempt of court for having her son in her apartment if there was not a quarter order embodying the agreement but other sorts of relief might well be possible right that may be the case but the fact that the city here didn't opt to take this back to the court indicates there means that the challenge that the plaintiffs have brought is to those judgments that have been so ordered and they can as they argued below what if what if they're going to take it now i guess and there may be some issue as to what the complaint actually asked for and what they argue below and whether they've waived something although i'm not sure why that wouldn't prevent them from being a slightly different lawsuit if what mr johnson says he's asking for is in joining you from taking any steps to enforce that judgment what happens to the state court and the state courts judgement it's only the city that's being bound by what relief they're asking for perhaps your honor though the court in the whole block decision eight of that decision said that you know that's kind of clever pleading saying we'll leave the judgment in place but no one can possibly enforce it that that is not a way around the record feldman doctrine that it's maybe smart maybe a smart approach but it  doesn't get by the jurisdictional bar what they've alleged here is an attempt is that the agreements the ongoing existence of those agreements constitutes ongoing continuing injury to them the source of the ongoing violation  was argued below is the agreements themselves and those are at this point because of decisions that were made and may have been made differently but at this point the facts that we're dealing with are that those agreements are inextricably bound up with the state court judgments and here you could could you give me an example of what and what would be you know the cases talk about it's not a record feldman problem if the court only ratified some injury and i think mr johnson is my other things trying to bring his clients under that that you did the injury when you got the agreement and then the court just ratified it and i hear what he's saying in the sense that  i would assume that the state court judges didn't engage in some inquiry as to you know is this a good thing or a bad thing as some of the parties want it nobody objects to my so wondering and i'm going to amount that be used against money that would be reimbursed to the plaintiffs there that was it's essentially separate from the agreements that was then incorporated into the agreement in the sense that the lien could be set off against the award from the settlement agreements so that just ratified whatever calculations took place independent of the terms of the agreement here however the legit harms arise entirely from the terms of the agreement all of the unconstitutional conditions that they're alleging all of the harms that allegedly arise from that are bound up in the terms of the agreement themselves they don't come from an outside source that simply kind of gets gets imported into it and so i think that's the difference between ratification and a direct challenge to the terms of the determine that they are invalid that it can't be enforced whether they are looking you know to the extent they are arguing that in some sense it's invalid it's not invalid based on any of the court is i mean it's not like they're saying please a fair hearing on these terms and so declare it invalid the invalidity that they're asserting is based on the negotiation of the settlement by the city does that make a difference no it doesn't because the to the extent that they are alleging that there is coercion of that is we're not truly entered into voluntarily that would be a ground to have attacked it at the outset and for the court not to have so not to have so ordered these judgments that that is part of then the judgment so the attack is on not again it was one challenge but not seen that these were coerced these are not voluntary and that's that there couldn't be an agreement in this case so so that is part and parcel of the judgment the fact that it wasn't addressed below doesn't matter and i lost my train of thought apologize but that  and the fact that the reason wasn't explained doesn't matter if the court had written a one page one set and decision saying that this looks all good to me i don't think there's any issue so ordered i don't think that changes anything either and it doesn't matter  what avenue in that plaintiffs have found the fact is that it's a jurisdictional bar and so they don't have the plaintiffs don't have an avenue and by any route that's what it means to be jurisdictional it's not jurisdictional except for certain instances thank you thank you very much johnson you reserve some time for a moment thank you for our counsel for the city suggested that the parties here ha