please the court jeffrey demain from san francisco representing the defendant of hell and professional engineers in california government my intention is to try to limit myself to fifteen minutes and then reserve five minutes for a bo i have to help keep track of your pass thank you your honor there are many issues in this case i know i'm not going to have time to discuss all of them i'd like to basically discuss or i'd like to divide my argument into two parts in the first part i'd like to discuss an analytical framework that i think explains the case and explains why the district court should not have reached the charge ability issues in other words whether certain challenged union expenditures were chargeable to agency fee payers in the second part i'd like to vent discuss that charge ability question which is in essence the language question but first i want to present th framework about why the court shouldn't have reach those issues it starts with the fundamental principle that comes down from the supreme court's decision in st all the way down through this court's decision in ca which is that a court cannot presume that few hairs object to paying the non chargeable portion of the fee if they don't want to pay the non chargeable portion of the fee the burden on them is to object and for that reason and challenges to unions charge ability challenge however cannot be brought as a class action what the plaintiffs did in this case was they didn't plead a free standing charge ability claim what they tried to do is dress up a charge ability claim as a hudson notice challenge in other words claim the problem with that is analytically you were right up against this court's decision and night tonight versus kenai peninsula school district which says a challenge to charge ability cannot be brought as the hudson notice claim in fact what knight said is that there is quote a clear distinction between the adequacy of a heads and the union's notice addressed by the supreme court in hudson and the propriety of the union's charges though the determinations considered separately by the supreme went on the say as therefore we vacate the portion of the district court's order in which it held the contested litigation expenses were properly chargeable yes the deal isn't that something different than we have here where there's a determination that certain charges may not be appropriate no expenses are properly chargeable that's from page eight fourteen of the night circuits decision you don't address charge ability one way or the other in addressing the hudson notice now the plaintiffs attempt to get around that night problem by saying well there's an exception where the expenses are quote unquote clearly nine chargeable now that doesn't help them for two separate reasons first of all there is no such exception night doesn't create any such exception at all and no other decision of this court has relied on the part of ships in the states the general rule that charge ability claims cannot be brought this had some notice claims finally even if even if that rule were the rule of the circuit the clearly i'm chargeable it wouldn't help the plaintiffs and the reason is this for the reasons i'm going to discuss later in the argument there is no clear law that the types of lobbying expenses that are at issue here are clearly not chargeable there's no there's no clear line that leonard doesn't hold back the second the second part of that is if you even look at chips and that's exactly what chips instead in chips and they went on to analyze the quote unquote clearly non chargeable issue and found that the lobbying they fall back in their heloc brief to another argument the other argument is that well the district court had to address our charge ability challenge because there were other problems with the hudson notice the lack of auditing the failure to properly audit for example and the district court had to work compensatory damages in order to figure out the compensatory damages the district court had to reach our charge ability claim well there's several problems with that and it's just simply not the case the first problem is the waiver problem the plaintiffs waived their charge ability challenge in their brief in support of their motion to dismiss paid scouts are claiming that it's very clear that they were not challenging the amount of the fee which is another way of saying choice to waive that claim or to clarify the scope of their claims didn't include a charge ability to challenge the plaintiffs or judicially stuff from changing their position and later saying oh we want to challenge the union's charge  state mandated remedy it was it was a state it was a procedure that the states set up that it required feet payers to go to go through but even even we don't even have to go that far we would have had at least an evaluation of our  counter claim on its merits as opposed to on this waiver point and i think that's enough reliance to bring us within the doctrine of judicial stoppel but even if the plaintiffs had not waived even if they hadn't waived it it still would have been improper for the court to have have reached the charge ability issue because what the problem is that reaching the charge ability issue again conflicts with the fundamental principle that you cannot presume dissent because awarding compensatory damages on that basis presumes to send instead what the court should have done would have been to have ordered the same sort of notice look like i mean you seem to have conceded that category forty one isn't an appropriate charge you going to send out exactly the same notice again reaching the same thirty dollars a month what would it look like well well first of all you're under the new hudson notice would be would portion of the hudson notice could look the same if they have not raised that somewhat nonsensical because you know the facts say there's this category which we're not allowed to charge you but we did and we're going to charge it to you anyway since we did you know we shouldn't it's no more nonsensical your honor than in any case when a plaintiff waits a certain damage claim i mean that can happen in any kind of case and the point is that it would go out with a new notice would go out it would have been properly audited and then people could have the they could have they would then have the opportunity to decide whether or not to object in the face of a properly audited notice which is the only thing that they've lost beginning of that which is say by the way we've conceded there's this category with charge you're going to continue to charge you what we shouldn't well union has every right to charge fee payers who don't think jack to nine chargeable for non charge of all expenditures as long as it gives them a properly audited notice now if the if the court were to reach the charge ability claims the court order the category forty one expenses i believe if those are the political action expenses it could order the union to make those nine chargeable but i'm unfortunate sort of running out of time and i want to move on  issue that if they've waived the ability to challenge any of the union's charge ability determinations they've waived their ability to challenge the charge ability determination as the category forty one but i understand category forty one could be viewed as being in a different a different  i hate to use the word category going to differ in a different position but the but certainly the other two categories are in a very different position not only because the plaintiffs of waive the right to challenge them but also because under lenora full plaintiffs haven't waive the right to challenge at most they waive the right to challenge in this lawsuit but presumably the notice is going to give them an opportunity to object that's when standing out the notice there's a difference your honor between between objecting and challenging case will be race judicata as to the money for that year they've had their chance to litigate that in this case and they've either waived it or haven't weighed but you don't get a second bite at the apple that i'm a nonmember i get the noticed what is it that i still get a bite after you get to say i object to paying for nine chargeable expenditures and has the unions calculated them now if you've already submitted that objection before you've probably already received a  notice they have an equal constitutional right to hate or to not pay that extra portion that isn't for representational activities and just as a theoretical matter problem there are several reasons for that to get mentioned the there's a body of case law which holds that that is not the proper remedy and this court would be down under by prescott last but also it's a recipe for give it a try stratagems which you know which could happen in other words go ahead charge it good or bad and see what happens the worst that can happen is you just have to do it again but you get to keep the money if no bombing i'm frustrated then maybe i'm not asking the question very well but what i'm what i want to hear back is what the constitutional rights of the few payers would not be respected if the remedy that i've just described one in home third circuit class action refund and charge of a portion of the agency no wessel which came after prescott and cites prescott for this proposition comes to the same conclusion that is not a class action except that the courts the district court's contribution to the language was thirteen months the court did say that thirteen months normally would be inappropriate in order to reissue it has a notice and you know but based on  the activities which they now admit it's illegal that is the bad audit and the illegally charging forcing our members to subsidize category forty one activities category forty one by itself is one such that takes budget for the rel the claim in our our position is that claim still lives at the district court made its determination that the audit requirement was not satisfied in connection with that march i ninety nine notice has there been any determination as to whether requirements are satisfied for any relied on that statement and the context is important because that was the question was whether the arbitration remedy the arbitration would bar the action and there was no harm to respond to your question to mr to me was that there were rights arising under hudson and the arbitrator isn't going to do anything about that because they don't deal with hudson claims they don't deal with ice and notices but that should not be interpreted to mean that we were waving our right to restitution for the hudson violations that were clearly alleged in a couple points that need to be made with respect to that there was no class certified at this time now obviously my predecessor could not waive the rights of people whom he did not represent and moreover in class litigation the district but there was no switch it was never stated that we were going to waive our rights for restitution under for the hudson violations allege that was always in the case and this has been twisted out of context and only  no your honor and that gets me to the other point that i believe i wanted to make which is that mr buettner talked about remedial measures as in coming space here because of the charge ability challenge it wouldn't have made any sense for the union to reissue the hudson no this is say this time crocker we added it until we get the straightened out about whether things are chargeable or not chargeable that's what we're trying to do here now unfortunate we've never gotten to the to the to the actual issue of charge ability i suppose we'll have to decide that on