sixtieth birthday so that their employment ended the undisputed facts in this record are that but for the mandatory retirement policy at age sixty neither appellant would have retired his declaration to that effect and those facts were not contested there was never an issue raised but that their decision to retire in the have the standing doctrine which is pretty powerful and that is that you have to establish an injury in fact and how can you be injured under a protest the fact that you're forcing me to retire but if i have to go i am going to choose this date in order to get a few extra dollars on my retirement kind of thing happened again well he would have been for as he got to the sixteenth what the cost of living adjustments along right and it's not only the cost of living adjustment in that particular year every year for the rest of their lives the cost of living adjustments their increases annually would be campaign ended and the base of their two thousand and two retirement so each of its three percent or four percent or whatever they call it would be would be compound so for the rest of their lives they would have suffered a loss of benefits had no choice and they had one  what's the appropriate remedy under the circumstances having chosen to exit for weeks three weeks prior to your out date you know the question with respect to the statue of limitations what do you contend the cause of action definitely decided that they were going to retire have an issue of fact as to whether or not they were actually thinking about retiring or not i do want to bring to your attention a case that was decided about a few three days before our reply brief was decided it was submitted and that's the case of statute of limitations for nine hundred eighty three actions can bar a facial challenge under the first amendment to the states that actually it appears to be a question that we that is not being considered conclusively resolved by any circuit court we join the fourth circuit in expressing serious doubts that a facial challenge under the first amendment could ever be barred by statute of limitations and then we go on to say we don't need to resolve that because they find that in his case i so long as it continues in the force and effect this case in context of the rance which while it was overruled or or the law underlying it was changed because of the change in the  about the that a facial challenge to a discriminatory law the discriminatory on its face can be brought at any time i think it applies and it applies with even greater force given this court's ruling in honor i think that if this policy is clearly patiently discriminatory it says if you're hired before certain date you have to retire if you're not hired after a certain date you don't have to retire at age sixty that's  a context clearly indicates that a facial challenge took a policy such as this can be brought at any time what other point you're out of going back to your question this action included the claim for seeking not just relief on behalf of the prior to april first ninety seven and i seems to me but even the left for the court were to find that their particular state if they chose to maximize their retirement benefit and mitigate their delegates they still have standing to bring the questions to the to opt out to opt out prospectively at that time players in their depositions and in the uncontroverted statements acknowledged they were aware of it however under but the a cruel of the actions governed by federal law and the case of state that the cruel of the action begins when the place of its given notion i mean notice of the act upon impact of the act to seek declaratory relief before the ordinances were in active because they faced the year civil and criminal penalties so councils argument is there was no injury in fact because they actually retired they weren't terminated that standing is based on a threat of imminent harm and the cases he relies on are cases where there is no to decided they wanted to reach with a site they want to retire for financial reasons that had they not retired they would have been harmed by turning sixty and that's not the law  with these plaintiffs they've brought this case is not a class action they knew they would have to retire they start writing letters and looking into it but then they stand to be a forty year old officer would have known of the six i got to retire from the