will call the next case united steel paper and forestry rubber manufacturing at all versus the government of the virgin islands and all sank or federation a where you haven't had the possibility that if we if we vacate even if we were to vacate on the commerce clause which is the only issue as i understand it you actually gone through a contract clause that you've actually appealed i don't we have been placed on a ruling by the district court on para and that the collective bargaining agreement and to the extent it has wages inconsistent with e s r cannot stand under para that's a separate alternative basis for concluding that there is not a breach of contract so that regardless of what we district court concluded in is twenty fourteen opinion that the collective bargaining agreement wage obligations were voided by para because the was the execution of the public policy by taking such actions as necessary to carry out the mission of public employer in times of emergency in other words it fit into paris exception for striking down legislation that issue has not been appealed to us that is standing as a result of the district court's two thousand and fourteen decision what then what difference in that case would any decision that we make make i believe i do think best and i think that the district judges argue that necessary is the same standard in both places but the district court didn't actually say that it didn't make the para holding a foregone conclusion because of its contract clause holding and it brings us back to  the failure to appeal the territorial claims that is either re preach of contract claim or or para when the only remedy that seems available this point would be one for damages mr k but let me take it then beyond nonetheless serves the state's purposes here there was a lesser impairment that would have served that would say that the state exactly the same amount of money they could have to her to a future time this is what which could be twenty or thirty or forty years hence i pad how do you distinguish this case from the case of baltimore teachers or the baltimore teachers you know i guess there are three big ways that we distinguish bestowed by the collective bargaining agreements because the government of the virgin islands was aware of the i'm pending financial crisis is that your position that's right there are a number of cases in which courts have held  bargaining agreements and it would seem like some of the agreements that were negotiated in late two thousand and nine are in a different position than some of the earlier collective agreement they were negotiated over the summer of twenty eight the very day i think the very day that he never gives a presentation the legislature saying we're in terrible financial respect to well does it matter it doesn't matter because you have to try and you work on your non impairing alternatives first and it really matters for this one reasons with respect to section three seventy four age in appropriation needs to be made for a contract to become fully binding the legislature has to appropriate the money so we're only really talking about wage claims for and ten agreement at that point there was a projection of a three point five million dollars surplus and there have been authorization of two hundred fifty million in borrowing that was later and that would be a mechanism to get damages that might otherwise not be available under a straight constitutional claim yes but those planes that  but doesn't the holding as to whether there is or is not a contract clause violation have an actual effect on the parties in the litigation that is it creates a live case and controversy if concluding the v a s i is unconstitutional would on  is your position that either the arbitration would have any basis to move forward or that there could be an independent breach of contract claim if the a side is upheld it doesn't that statute as long as it's in place essentially void their ability to pursue a breach of contract claim or the arbitration which is the claim of a grievance for the breach of of the agreement not be the state and the actual problems be a defense to that suit as as it was to the impairment of contract action so that this appeal may be mood so once you get on to i understand i understand your position on the modus argument and i understand your argument that there are distinctions so why don't you move on to the question of you know whether or not the legislature can take away and one hand what the governor had put them in the other hand  like the the collective bargaining agreements are still valid and enforceable number one number two the fact that they have decided and said you know order to be the president corporation i'm not sure if the contract cost son the contract clause would not apply to the corporation a contract clause says no state shall pass any law and pairing obligations of contract well let me ask you let me ask you a hypothetical suppose we should find that there is an impairment of the contract of the collective bargaining agreements the fact that the government was aware of the impending financial severe financial problems at the time the collective bargaining agreements were negotiated does that fact the necessity defen get behind that decision to the foundation of the decision which is whether the legislature acted reasonably and you get behind where you go is to the record you see whether there's evidence in the record i agree it's not the only question but but you were answering a impairment question when you when you cited to us a standard to review well i'm sorry can we step back for a second if i'm hearing you correctly you're making the argument now which i think is for the first time in this court that there was no it impairment here and that was an argument that was made and was actually accepted in in a fourth circuit case i mean cherry no argument that i've seen anywhere other than hearing you make it now that this was a breach of contract but not an impairment for contract clause purposes isn't that argument waived here and you seem to be arguing that the twenty four to forty eight hours in which the a so was submitted to the legislature should be deemed sufficient and consideration of alternatives doesn't that and what do we do with the fact that o m b director got leave and legislative pushed auditor posy george both gave testimony indicating that no special consideration was given to the fact that there was a contractual obligation under the collective bargaining agreement in other words that it was treated at at best on par with other alternatives isn't that the  very articulation of a violation of of the legal standard and the supreme court has said it shouldn't be considered on par with other alternatives but that's what we're looking for in the record and these these witnesses testified that it was considered on par no special consideration was given why doesn't that answer the question before us was that there were want to go back to the debate on impairment or the question of impairment you'll agree that the c b a's provided for increase in sauer is for the employees correct and you agreed at the c v a also said that it could not those salary increases cannot be modified without mutual agreement all right now the to it's seems to me that for that to be a reasonable expectation you would have to acknowledge that you're not going to hold if a quarter of our court holds that this is not a contract clause violation you're not the government concedes that the arbitration could move forward on the merits not withstanding and notwithstanding the finding of necessity that informed the this agreement will be valid if it becomes necessary for the government takes steps but the answer to that is that the government knew when it was negotiating nice terms that it couldn't issue that hasn't been developed so far is that an issue that we ought to send this back in the district court and say look into this what what did the government know at the time it was it goes eating these collective bargaining agreements and if it didn't know that it would it was collecting it was negotiating terms that it could never meet does that invalidate its defense that we can't afford to pay it is a new that they would not the definition of reasonable in this under the contract was jurisprudence whether or not is forseeable that ross question is going to do its its foreseeability and we we have here a problem of fundamental fairness in that the unions actually asked the question of the negotiator to confirm given the problems that were being discussed at the time that there would be funds available if they were told no then presumably they would have negotiated other other at the record and see whether there's evidence in the records or because you can i ask one final question that goes to some of your questions i think and that is you're arguing that there is no impairment doesn't the terms of v a some clearly tell us otherwise i mean this is a fairly unique case in that the statute itself says notwithstanding the provisions of title three virgin islands co chappie twenty five the title twenty four bridge nine is quote chapter power in other words the statute itself is saying notwithstanding the provisions of the collective bargaining agreements we are making we're passing this legislation and reducing changing the terms of those agreements how then can the statue not be an impairment when it you to the public employee relations we're in the decision that was submitted with our supplemental butter brief on page four of their decision or it says respondent the government maintains that the damages on and we wouldn't be a stopped by the district court's decision because we didn't have the opportunity to litigate that question on we weren't part of the territorial waters while we tried to appeal  the what it seems to me in looking at it's a number of these cases whether it be buffalo teachers from baltimore teachers and any other cases on or not you can impair negotiated contracts with employees during this time of economic crisis what makes me uncomfortable is each of those cases is different in this case is different from them and it gets me back to my original question do you is how do we gauge the reasonableness of a legislative action which they take that they think is necessary to carry out the public policy of the software that they represent clearly the courtne fact that this was asked whether there would be money told there would be money two months later the projections are different so what was the remedy you want us to give if we say it was collective bargaining agreements absolutely deborah gottlieb's testimony to the to the legislature say it gives an update on where we are with our negotiations with our