government just as they had notice of williams that's not the constitutionally adequate notice in the first place with a notice that is constitutionally required is notice that is that the case was sort of vital as a non opt out class action just big knowing in the lunchroom that there was a case file called williams is not a not and again that or the point that's a speculative but even assuming your honor that they had actually no so even that to get your question specifically it's not enough because opt out is remember and certainly this up again even if there isn't even actually most are still in the record i think your honor's point is a good one and that's why we have we have a system in our law rules the rules set forth a certain kind of notice it's not just kind of like you should if you see something in the newspaper that you suddenly and so you may actually hear that gee there's a class action and then you suddenly have an obligation to go in and do something i think the most important point here is and asked in class member doesn't have any affirmative obligation to do anything as the court said insane shots unlike the defendant in a normal civil suit and absent class action plaintiff is not required to do anything he may sit back and allow the litigation to run its course content in knowing that there are safeguards provided for his protection the court and the the litigants but the way the class action mechanism is set out is that the the court has an obligation to look out for the interests of the absent class members the asset class or doesn't have an obligation to affirmatively go into paris q about thai court case if you can walk me through on what you understand the court to have done that case because it seems to me that it's it's because the rule twenty three if she wishes are left in a case in which these parties did not participate i agree with your honor i i think one thing when she was it sounds quirky to put it that way is process challenge and of course the g c we don't really want to be getting the due process issue and it looks like there's a big rule twenty three issues so let's just get rid of let's just say this is not a good vehicle but i agree with you that there is an anomaly in that put in the same anomaly that exists for due process to of saying that a person should be bound in any way by something that happened in a different case it's very strange to think that even in the respect of the the client's part of  the there isn't really i haven't able to come up with anything better i think that tiger is the same anomaly but again our point did even accepting the paper actually stands for that proposition that you can be bound by anything in the case in which the to which you were a complete facts and as a practical matter i think that since the rules were written to preserve due process the analysis essentially tracks each other i'm not sure that there is a huge  gap there between what the rules provide and what due process requires but you would if that's true then you would not to contest the applicability of a b to class action   there may be circumstances even in being one of the two actions we're noticed is required and the rule rule rules twenty three c is what provides for no servicing class actions and for instance in problematic in our system to say that somebody who is a stranger to a case wants to file a lawsuit some is guess what there's another case over here of which you never heard that that that binds against what you relief and and without giving notice and not that rights and the court said well we don't decide that question that raises a very serious constitutional problem if there's any monetary component but but certainly in this case we will have to decide that entire question because because the only circumstance in which that might be possible might is where the money thirdly is incidental and it defines incidental as being individualized and flowing directly from injunctive or declaratory relief the government focuses only on the individualized part of that as the whole world is divided individualized versus non individual as claim that this is not the way wal mart defined it individualized is necessary but not sufficient to be instant and then the question really goes it can't possibly be that williams involved incidental monetary claims because it was a puck around case and under the tucker act as your honour's no because this court of public sees more talk cases we'll see  is it money terry relief so that the legal equitable issue of backpay in supreme court made this quite clear in walmart's that it doesn't matter because the question is when you're talking about money that whatever might allow courts to dispense with notice and opt out rights in cases that are declaratory or jump when you're talking about money relief those considerations are there whether the money is really an equitable or not equitable misses the point and i think that's one of the primary lessons of wal mart and so you don't have to get into that point and so again the question is however you look at back pay the point remains it is a it is seeking monetary relief and notice and not that rights are constitutionally required as well as required by the way that if this government were correct in their view of the world that all you need to look at is the claim that individual rights or not you could have non individualized claims purely for money without any relationship to a declaratory or injunctive claim and and that would be perfectly fine to certify a non opt out basis and could be given for clues as a fact without any kind of problem but that's not the line that the court the constitutional arguments because all my clients were on the bench before two thousand and one so whatever the two thousand and one statute did it couldn't have changed their ex whatever expectations that they had or thousand and one statute changed the analysis of the legal issue because this issue pollution you're right and judge newman in her dissent from the initial hearing on bond petition in this case working its way up the first time suggested that the supreme court's decision in patter and the two thousand and one statute did make a difference in the issues i think it with respect to our claims so this is kind of due process one o one that you can't help people guess what you want to read also about your pay it's hard to imagine a more classic or point eventually monetary judgement in the then perhaps that notion that equitable nature is confined to civil rights if even if it again is that a doesn't matter and again let's not lose sight of the fact that williams was a talker at case so the government has a quandary here either there was no jurisdiction under williams in the for is a little pop or rock case either there was no jurisdiction in williams in the first place because it was primarily  both ways and it's kind of curious when you see the government in william acquiescing in the certification of a non opt out class on the basis under b to that is that it seeking clarity or injunctive relief and then coming to this court and saying well you a this court doesn't have to decide the answer to this constitutional question the supreme court left open in wal mart whether there are there's ever a time when claims for monetary and to me ever come for monetary it bars us from challenging them directly in saying we want to recover money going back to nineteen ninety five i think where what we asked for our complaint was to say we can go back six years but then what we believe need is that the base salary that we get going back six years should reflect those earlier are optional and it is the part that doesn't part of that yes you are i mean that's a remedial question we can get to down the road but but that's that's our perks i've from the thought i'd like to address the point made by mr landau that the williams case was entirely a tucker accident therefore there is some type of tension between the arguments we're making now in this and the statements made in the government's brief in that case back then williams was not soley a little talk perhaps it was a suit grounded on both the little talker act and the federal question jurisdiction under section thirteen thirty one and for that reason money again that the the the distorted corps being a court of general jurisdiction would have the authority to issue a declaratory judgments or declarations of the parties rights in the context of that suit under thirteen thirty one and that in fact is what the court did it will you know it in the court of federal claims that he sued will in the sense order would declare the parties rights because the in order to enter a judgment in favor of plaintiffs for example that were tested say i think they the government is wrong in its theory that they shouldn't have been paid according to the plaint focused on that precise point we pointed out in our brief that it was the perspective aspect of the judgment williams which made it a territory in a sense and that was the critical ruling in that case at least  government had noted i believe for the first time in the case that there was leaves the question as to whether the claims exceeded ten thousand dollars and therefore there was a question as to whether the little to correct it applied at all that was the only point that was being raised there it wasn't the issues that we're dealing with now in response the williams plaintiffs and their brief argued quite forcefully that this was not simply a little talker at case it was also a federal question case and that the district court said broader powers than the court a federal was simply misplaced and by the same token mr lamb no suggestion that if our position is accepted that this was both a case involving declaratory really prospective declaratory relief and monetary relief that there would be some reverend that's that's one aspect of it your honor it might also be and we've tied it into the supreme court's analysis and wal mart it really is consistent with the court's analysis and wal mart of the notion appeals have to have adopted in varying degrees this notion of incidental damages and it is consistent with most importantly it's consistent with the supreme court's reasoning walmart's as to what the essential nature would be to class is it doesn't matter what the labels are and the parties of sort of gotten caught up in a lot of semantic descriptions of what money really more damages can be whether they're incidental or essential or predominant i think the supreme court the essence of the folding in wal mart is that these labels don't mean anything at least for me to what is important is the notion that the really the claims are really must be  future without regard to the ninety five ninety nine statute why wouldn't notice have been required in those circumstances for put aside the op that question why would these formal  if there was if there was no money claims at all then noticed certainly wouldn't because it's generally not required under b to go in with what supreme court case tells us that in those circumstances notice wouldn't be required to find  opportunities for the parties to litigate at least at the supreme court level one thing is clear though is that the notion that the appellant's of suggested that notice an opt out rights or the touchstone due process in all cases and therefore must be available in all class context is not something the court has held going back as early as this the seminal case of hansberry vs leave the court addressed the issue isn't being one of adequate representation with parties of common interests over the years of the supreme court's president has developed on the issue of notice and in different contexts yes there has been a question as to whether it's simply a matter of adequate representation or does noticed come into play somehow  court addressed that most directly in richard the jefferson county alabama which it seemed to recognize that yes we have presidents that say notice is the touchstone of due process but we also have hans very  another case the seem to say is adequate representation will just assume that that issue is is is as hans very said and will will hold open the issue as to whether out of the representation can remedy an absence of notice in some cases and so that's what we're saying here the courts of appeals have sort of filled with that respect and look to the two cases whether any type of money claims can be properly certified into that role consistent with due process and as we've explained many cases of help as long as there are incidental in the sense that they spring directly from the declaratory injunctive relief   well most of these cases i believe involve back pay claims well that's another question the question is if the injunctive relief is itself concerned only the payment money if really was prospective and they also added that it was essentially equivalent to an injunction even though they didn't specifically request an injunction so it could differ somewhat from this for the sort of the classic title seven discriminate what about the actual no this point i mean it strikes me in reading some of these supreme court cases on service a process that he says b b has actual notice of the case is still insufficient to enter a judgment against the you've got to have form some sort of formal service and why shouldn't that be true also in this context that you know order to the sufficient constitution why would it have to be formal notice some directive from the court some letter from the court inviting them of the action and their rights to do something either to opt out of t yes two different types of notice one was given under different rules of the bankruptcy process yes let me see that following up on tire exchange earlier if i understand where you would s many people at my level should have been paid at a higher g s rate than we were the conversion in the agency to the new g s scale it say was was unlawful absent class members no problem no notice well i would say that's really much like what occurred in williams and in that sense so long as a bit you seem to be relying when in williams on the district court was illegal and not to say agency you may not continue this action although of course the agency is least after the order became final would not continue the action so the difference between an injunction a declaratory judgment and out their request for declaratory judgment project kurta really in this case and we pointed out that well there would have been a difference in that they would not have received the prospect of relief that they did in fact obtain  well but as a practical matter to me you know i declare a tory judgment is not that different i think you'd agree from an order of the court granting retrospective relief predicated on an interpretation of think that we have an ally on the prospective relief is that a predicate to saying that and therefore that due process would not require even in the pure tucker had retrospective monetary relief setting due process would yes if due process doesn't require notice now but with a copy of that you said that person would have argued that they could have made or would have made different arguments now that's what we're sort of touching on we the parties really are in dispute as to the  basic issue here is we want to do process and burry indicates that the issue for this court to decide is whether the procedures employed in the first suit fairly protected the interests of the absent class members and we readily acknowledge that and asked in class member can meet her can ovoid her clothes affect that they can come in and show some reason why their interests were not adequately protected and that might be that they were not adequately represented or that their work divergences of interest between themselves and the named parties or that there was any other issue in the vote individualized issue claim defense what have you that differentiated their interests from those that adjudicated so in your honour's hypothetical that if a plan to come by and say i i would have made this argument they missed the central argument that would've prevailed carry the day that's really in a sense saying that there wasn't adequate representation by class council and that would provide a colorable basis to to avoid reclusive effect of the first judgment does this season involve the same issues as williams with respect to the two thousand and earlier stances than the two thousand census well the two thousand and one that you does present an additional argument additional issue that the plans would need to overcome however to prevail they still need to what's the difference between the two thousand and one statute and the earliest that i may well understanding can explain what differences but in terms of arguments is there a difference well then this court in williams held that well as the solicitor general pointed out in in the recent opposition for judges taking the bench after two thousand and one statute became effective there they couldn't understandably be a claim to future pay increases held that section forty expired on its own terms in one thousand one so it didn't apply at that time congress says after the court's decision made that amended in two thousand and one to clarify that it applied in one thousand eight and one in all subsequent years so if this case ever were to proceed further that might become an issue whether this court's ruling i'm a little confused let me see if i can be clear if the nine ninety five stand she is unconstitutional doesn't necessarily follow the two thousand and one  well it i don't know if it follows from that point of logic that is tied to the ninety five statutes constitutionality is more what it is in terms of the legal principle established in invalid nine hundred ninety five  well it depends because the two thousand and one statute deals with section one forty which was in enacted prior to the one thousand nine hundred eighty nine act which is the source of the right for future pol so if congress is correct as they seem to indicated in two thousand and one that section two forty took effect in one thousand nine hundred one and require congressional approval for pay  correct and if in effect it seems that in passing the blocking statutes were actually in every year after one forty was an act of congress seem to be acting under the authority of that provision in either authorizing a cold or denying a goal in those few specific years and nine hundred ninety five ninety six seven ninety nine other is not part of the record readily accessible portions of the record before us it would be helpful to us if the two of you could agree that that is the judgment and that's all there was to je ninety that read the opinion and then there's an order right and then there's a judgment and so i was reading too from the judgment which is the operative legal bob and the order just gives a number of orders and it order does say that you get a pass relief which i mention the order does say order what you do when you have a judgment which is typically the operative legal documents and in order it seems we more broadly than the judgments point that being said and putting that aside in this court exercise jurisdiction in williams on the sort of a backward looking claim for a single year to the very decision to which the government is trying to get issued reclusive effect here very carefully limited its jurisdiction and with not taking this as a case about the future and saying constitutional issues presented because the that there is a question of discrimination against judges in the ninety's in the two thousand and one statute i think there are certainly potentially suggestion you were making that you're absolutely right that the supreme court generally requires formal notice and doesn't the when there are procedures provided for notice and that's quite there's a case i think that you were alluding to that says you need formal service of process to start the time for responding to a complaint and justice ginsburg wrote the opinion the name escapes me now but the question there was even if you know that the person actually got the complaint shouldn't that run the and the supreme court said no there's an importance to the formal procedures and there's anything that's clear about the will is cases that the formal procedures and the notice were not followed this is certified again that without composition as a non opt out class no notice class and it ate in a two page order without any analysis and now the government is saying guess what that bounced all the judges forever and you know i again one point not to lose sight of here is the this is a there's a legal issues here are structural constitutional issues they're important to the individual judges but they're also important to our system of government and  l and so this is a case which one has to be very careful it seems to me when you say that the first person who could run in with a non opt out class can resolve a constitutional issue that will but again i think if ever i mean you know we made that point in our brief your honor but again i think it's important to keep in mind that that there's an important constitutional issue here and again we don't think this is a closed case with respect to to the due process issues involved because it's so clear here that that the williams case was all about money and this court limited the its jurisdiction and williams to the money plain were single year thank