newly clean any newly asserted claim for dr nominal damages claims alpha specifically rejected in obtaining an injunctive relief cannot save this case from dismissal that's on appendix the five because alpha does not seek money damages in the next page again in bold alpha does not seek money damages so that's a concern of the court in perhaps the parties feel that amongst many other things you'd like to that the one thing that became very clear from the appendix sites and it's virtually beyond dispute and that is that alpha only saw it claire tory relief attorneys fees and costs and not only never s monetary damages but as the court just put on the record actively disclaimed at every turn any interest in monetary damages as a starting matter your opening briefing this is  standing by your reply brief it seems you agree that this is really a question of scoring not standing i know that it's a it's a maybe an intellectual level beyond mind where mood is and standing are so close in and from an analytical standpoint my understanding of standing is that's the germination that's made at the beginning of the process moves may or may not occur as the process goes along but we're later in the talk about the normal damages point if you were to yes the nominal damages the nominal damages are monetary damages i don't think that there's any any dispute about that it's dollars it's something with a dollar sign in front of it but the appendix citations were all in the context of there's no adequate relief at law compensatory damages are not going to do it in context what they're saying is no we're not we're not seeking compensatory damages here we need an injunction in order to remedy this so that the need for an injunction or no etiquette really for law is not inconsistent with nominal damages no i think you're absolutely right and i think that that the critical point on on the on the nominal damages is they were never sought and the distinction i make is that when it suited alpha to seek or to make clear to the court that it was not seeking any monetary damages it was only seeking declaratory relief they did that so they made a tactical decision ok and now you greet that by point that this could be read in context as we're just coming compensatory damages but you also hinted at another argument which is they were never sought they're not mentioned in the complaint now but some case law out there i want to hear you deal with we've got this case from one hundred and sixty five dollars that said in a sentence you know they're going to be pursued they don't have to be soft there's  were already completed in this in the alpha case the contract to paint the bridge was already bid it was already awarded and the work was already done and now becomes this amended complaint which we say there was no authority we of course violated the mandate but that's another but if amending is ok amendments relate back and amended purrs for really fairly and you've agreed there was standing at the outset no one disputes there was standing that the time the complaint was filed so we're in moot is territory and you've got a heavy burden to show the cases booked right i'm not sure they could initiate a new suit now but they're a big bridge come painting clear that there is no reasonable probability that this will recur the points that i would make in response to that question your honor the st one is that it was never argued that there was a an opportunity or that there was a risk or that there was a likelihood that there was any opportunity for this to move this up before a sewer sponte i mean it we examine jurisdiction at any point so that's not dispositive i understand that but d the critical point is there's nothing in this record to support an argument that that there was a likelihood of this recurring there's no got the burden of disproving it it has to be absolutely clear well the do things that i would say that factually make that very difficult task for the alpha is that they withdrew from the from the bidding process does this mean that if they come back in some future bid attention paid to what were called experience modification factors that was the only thing that this court said was the was the source of the d of the violation of the constitutional violation t comply with that mandate the d r p a proposed a totally new approach that dealt specifically with e m s not being the sole determining factor on the awarding of the contract or even if novel damages are in the case declaratory relief is a possibility for that he would still just have to show the same thing no reasonable likelihood of this recurring it i think is very clear from this admission that we made to the district court when we catalog the the items which we were going to make sure address the the rd circuit concern the last time we were here two years ago on how the d responsibility review was going to be determined the responsibility or view was given a much broader scope consistent with the with this court's opinion at that time and that is now in yes so the complaint to two paragraphs and complaint we for two awarding such further relief is the court deems just improper pursuant to section one thousand nine hundred and three so couldn't the court awarded a dollar in nominal damages recognition that enough to to how do you deal with that well i haven't i haven't seen a case that in this circuit or another circuit that says don't worry if you don't plead nominal damages you can always go back to the catch all the reply brief so can you point me to anywhere where you preserve this this idea that equal protection class of one is not permissible in the government contracting context well i think a properly pleaded class  any protection claim and did you preserve that part of it the case is my recollection is that the focus the focal point of the cases that dealt with that and i thought they were in the circuit i just can't remember them  by name right now i don't specifically with the requirement of some indication of animists were malice towards that individual in other words it was the they were singled out for  some special treatment did you preserve that argument the district court yes i think we did ok you where of where in the record you did well i can find that i've got a couple more minutes and i can do that about the threshold issue here this will fifteen be issue  the equal protection issue is basically a constitutional version of arbitrary capricious common law claim is there any way in which you would only be gated this case any differently i mean if those are if they're basically the same  any way in which you will let you get it differently taking its new discovery anyway in which you were prejudiced by the post trial amendments here yes we're totally preggers by it because we had no idea what we d were trying the case that that was included in the case notices  notices a requirement how would you have done it differently anyway and all you can think of where where you would a little get it differently st of all there was no there was no discovery or there was no yeah there was no discovery at all beyond the that was in there in alphas rush to judgment they wanted to combine the injunctive phase with the trial on the merits which was their decision and then they made it but there was no discovery that was i guess my point is that this is just like claim how would you have done this one any differently from the way you litigated the arbitrary capricious clik well i think that it's a misuse is attempted to use fifteen there were fifteen for a purpose other than it is an inte take your inability to answer the question as a concession that you have no prejudice you can point to and you're simply saying it's not legally authorized to rule fifteen it is that what your position comes down it is in can knowing not legally authorized by will fifteen but due process ok so d let's talk about the merits of this you rely pretty heavily on independent enterprises that's a pretty good case but it's a pennsylvania law case i've looked at new jersey law in new jersey law seems to say you can't seek damages but you might be able to go and see conjunctive relief in these kinds of cases so what do we do st of all is this if this is a by state compact that congress authorized and it's the entity is both pennsylvania new jersey is it federal common law all of that governs here or is it the law of both states somehow because i think you make the point you know it's not it's not clear that either state expressly authorized applying this to do so should we be four million federal calm all that aside is there a protected property interest here i think the answer to that is is the only argument that i can make or the only way i can address that ok well if we think it might be federal common law might we consider what you jersey and pennsylvania at least have in common here i mean we may need to formulate a rule decision but i don't know whether under federal law is meant to be sensitive that pennsylvania new jersey have part of this in common you can't seek money damages and then they seem like they might have a difference you can tell me if you found pennsylvania new jersey law but it seems like pennsylvania would foreclose these claims entirely in new jersey might allow declaratory and  relief so there is some kind of protected interest in new jersey not pennsylvania we might have to pick between these two rules why should we pick the rule you want which is that there's no protectable interest in the st place if we have to decide between these well i think that the greater interest it's a it's a very difficult argument to make who has the greater interest in the in the outcome let's say both states have equal interest because the bridge to the bridges go to covers both both are were maybe we have to pick which is the better rule or the more consistent rule with the states why is it a preferable rule to say there's no protectable interest here at all because you guys to win on procedure of due process you have to say they have no protectable interest if we can if we don't buy your threshold procedural objections well because i think the requirements as i said of the the they procedural due process are stronger d they're more effective then i think that those are the ones that should be a part of if you have anything but i would like to suggest st start with the questions that the court had in terms of the waiver and i think the court's view of the statements made by alpha in context is exactly where that question needs hansard in context alpha disclaimed and has always disclaimed the white to receive compensatory damages the law appeared very clear to us still seems clear to us that he rejected better however long haul is not entitle to actual compensatory damages so we had to be arguing that every time he said we don't seek damages you only mean compensatory damages actively yes in the in the briefing book so that's the st piece what was said in the context of receiving the injunction that there was no adequate remedy at law when we were before the district court who look at the way this issue really wasn't briefed in the same way that we're discussing it today the argument that was really being made was that we couldn't proceed with our procedural due process claim and ask for our attorney species under section one hundred and eight because we had disclaimed damages and we said attorneys these aren't damages were not we never sought damages we're not seeking damages now yes and in hindsight there was a passing reference in one of the briefs that your honor mentioned at the outset to nominal damages but that really don't imply these things arizona's refusal english is skeptical all right military that says the modern law is that we don't imply these things so why should we let you off the hook on that ok so to start  circuit which said nominal damages don't need to be expressly planned and all that i read that one sentence and deceased it st i thought it said that but a siesta sends back for a new trial and then it has this discussion it says so we would have upheld the damages was fifty four states and instructs the court to grant final judgment that grants the relief to which each party isn't titled even if not demanded in the pleading but a lot of the even the cases you sent us in the twenty j letter the other day i mean they all are good arguments for the relief those cases but yet we have an express waiver in this case which would take it outside of the rules and all these these case holdings how do we deal with a waiver of in these circumstances where that well st for the reason that i suggested i don't mean other words it's not just i didn't say anything about nominal the images we have now now we were here i think again in context i think you have a waiver of compensatory damages but here in light of the pooling in burns and hagen's who are the court has held that a claim proper completed procedural due process claim always survives mootness because of the after this core affirmed in finding that the d r p is rejection of has been was illegal we return to the district court at that time the injunction had been vacated and we had no remedy so when we appear before the district court we asked for two things we asked to modify the injunction and to reinstate our procedural due process claim at that juncture when the district court did what was prudent at the time it exercise discretion to enter the injunctive relief so that the public project prospect of this recurring make the argument as to why this declaratory judgment has some possible poleward forward looking effect on your client i think that the d r p conduct here in when we return to the district court the district court found that what it was seeking to do in that and hundreds of the d r p i was arguing for was a was in the district courts who are in an unexplained and continuing painter will out bit again i have to think they will there's nothing in the record again is because because of the way the issue was briefed in the district court but there's no reason to think just back to the way of a point the other issue that i want to raise is that because of the holding in burns and hagen's that a claim for completed procedural due process violation is come is done at the time the violation o urs and therefore always survives and lewdness claim because of the availability of nominal damages finding that we intentionally voluntarily waived a claim her nominal damages here is effectively a conclusion that we voluntarily and intentionally waived our procedural due process rights and that is certainly not inconsistent with it is certainly not consistent with the record so i think in light of the holding and burns in hagen's so to find the four and what that says is that the court is is instructed by will fifty four dollars to to determine whether kind of you're entitled to any remedy so we had a prayer for declaratory really if the court felt or feels that the request for declaratory relief was not in itself sufficient than what the court was obligated and is obligated to do is determine whether there is an appropriate relief and that would be nominal damages equal protection  that government contracting isn't like government employment on the proprietary side why we should treat it as more regulatory matter that can give rise to equal protection class of one claims because in quiz looks like the closest precedent in some ways because the issue is so tied to the specific regulations or procedures in the public being cont there may be public bidding statutes and regulations that are very similar to the employment contacts but that there will is still that the class of one claim can exist where the challenge for this decision is purely discretionary in here in light of the d r p is minimal for the same reasons that we believe that there is a protective property interest the d r p is discretion here is very limited or is determined to be low and responsive and there has to be a substantial that's not the sort of purely discretionary decision and what your position of what of what of the equal protection challenges w taking the position that they've waived is that the argument that and a class of one kind can never that's how i read their brief now is that an equal a class of one equal protection claim and never exist in the public  adding in a new claim later so it seems to collide with the text of the rule why should why was it nevertheless within the district court's discretion to allow this case of a belated amendment again i think the court's questions and to our adversary hit right on the main point that it's a discretionary determination by the district court and the touchstone of that analysis is prejudice the d r p has never additional issues and disha no testimony and to show evidence that would have been presented had it been an equal protection claim so i think that the lack of prejudice given the lack of prejudice that was well within the court's discretion  that and i would also just for the context again we're talking about this as if it was will fifteen we've never really made a motion whole fifteen but we're assuming that that was  the basis for the court's ruling last my colleagues when asked were about equal protection i would like to ask about due process first of all how would you describe the property interest you're claiming here you're not claiming you had a contract you're not even claiming there was promis estoppel that gave you contract rights so how do we describe it in a way that would be workable for future cases so in terms of the the workability for future cases that the existence of the property right and what that property right is would only be for purposes of d r p a bit in contracts under this menu i understand it might be cited more broadly  darpa bridge projects bridge tunnel i don't know what have a right to have their bids processed according to every rule in the  books that darpa puts out no i would articulate it this way i would say that the low we're sponsible better is entitled to be the awardee absent a substantial reason for finding a lack of responsibility alpha was the low better it was no worse that responsive lower sponsor better when the ten days passed and after that time it was rejected  without any real responsibility determination but it need not only the process but the r p had to point to a substantial reason for finding that it was not responsible makes me nervous is that low is an easy objective criterion responsive seems like it might be relatively mechanical but his fear really not discretion built into this more whole list stick responsibility analysis in a way that will cause all kinds of trouble if we're going to we're going to foist this as a rule on darpa this then would push us towards saying this is more like an anguished kind of claim that we can't we can't require them to follow this because responsibility is is not something we as judges can easily police my time is up that mansour please the substantial reason standard in the is manual limits the subsists the substantive discretion and that is just like the four cause standard in the employment in the public employment context that this court has recognized in mckinney and tonneau if there if there is a for cause required for determination of a public employment or public employment benefit that is sufficient to give rise to a protective property interest even though employment determinations are ordinarily discretionary as the court recognised the inquest if it's a for cause standard you have a legitimate entitlement which is the standard for giving lines for probably interest and substantial what i asked your friend on the other side so we've got the independent enterprises case but that's a pennsylvania law case yes we don't have a lot of briefing on the new jersey law but what i've been able to find suggest  usually law does not allow damages but does allow declaratory injunctive relief so there would be a protected interest protected to a limited extent new jersey there's no protected interest in pennsylvania this is a by state in  and neither of these laws appears to expressly talk to what darpa can do or this is a creature of an interstate compact blessed by congress do we apply federal common law here with respect to whether a property interest arises the source is always the state law or hear the d r p a manual right but the federal rules apply as to what sufficiently limited discretion to give rise to the occasion but the weird thing is there's  we've got two states but are we saying there's a right on one half of the bridge not the other half no i think and i think the law is clear as my colleague suggested that unless pennsylvania law and new jersey law are exactly the same that neither the p is not bound by either of those so i think we are in the realm of some federal common law if they are and pennsylvania new jersey agree to some extent but they disagree to another which it should should federal com law be looking at what these two states are trying to mirror it for this entity and may be different in other cases and if that's right how do we pick between these two i mean i think you're out of court under pennsylvania law and you might be in court  a new jersey law make the argument as to why the the new jersey rule or a broader rules of is of a better or the more fitting one we should adopt that i don't think it's appropriate for the court to look to either of those states laws ok given that the general proposition that the d r p a is not subject to either states lot unless they are precisely the same so i'm not sure that i under understand the courts if you don't  law how do you have property rights where your property rights come from a property right arises from the manual does not arise from a law it can arise from a person a manual like procedure under some body a law and i process is triggered correct and so how do we figure out the content of federal common law at least as to this manual we can apply the general standard as the general standards are that when there is a legitimate  responsive is sufficiently similar to the for cause i think to to find that the building blocks is there's something in the manual that says it's creating rights for the benefit of the bitters i mean this was the this was the issue in and their prices how do we know the rules are for the benefit of the bidders not just for the benefit of taxpayers is there something in the manual that speaks to i don't know the answer to that i could certainly look and provided to the court but there i'm not aware of any law that it's similar to the pennsylvania law which is that a bitter has no standing to object to an arbitrary capricious or illegal conduct by the that's the law that independent enterprises is primarily based upon a well developed body of pennsylvania law that no better under any circumstances has standing to challenge a bit and i'm not aware of anyone that federal common law or other or a lot particular to the dea or p s a that would suggest that there is not standing there to be arsed a lot of people on the federal government public bidding context where bidders have standing to assert challenges  where they disclaimed dollar damages and say well it would just give them that benefit of that doubt because it's in the it's in the general prayer for relief that we do have a doctor and this is voluntary suspicion of illegal activity doesn't make something  this is like involuntary suspicion of illegal activity under court order it seems like a stronger case for saying just the fact that you got some relief doesn't mean that the court had to do it at the same time rather than doing it over some period of time the reason that this activity stopped is in part because of the the earlier order of the court's relief so bold to say sure might seem to be analogous i think that the that there were the one critical point that i'll make on the by d r p a a to the district court following remain and as to how the responsibility review which this panel has expressed an interest in was was going to happen  it was totally different then they were included many of the same principles but it included a much more thorough as this court directed us to a much more thorough responsibility review and  eloquence i think shakespeare said that was our statement of we understand what you said rd circuit we understand that you weren't satisfied with that responsibility review here district court is how we're going to remedy that and here are the many steps that that we're now going to go through excuse me in the responsibility review that alpha abandoned alpha didn't want to participate in that they voluntarily withdrew from it  your time is up sir it is