just to make clear about prolonging the litigation while of the litigation so soley responsible to the intervene and in that litigation they were not only defending the collective bargain they were saying i think two percent of the plaintiffs were different interests in the states just like the union we're not part of the state we're not sceptical or liable for what they did your interest one hundred percent we did not mind because they were seeking to avoid liability we were seeking to then by definition they the difference is we have a different interest in the state the fact that we made the same argument is entirely relic indeed i would think every intervening defendant is making  commonwealth it states and it four times this court has made it clear that a blameless intervener is somebody who is not libel on the merits in the run creek ohio river collusion between the state intervene the interveners were coming in soley for the purpose of avoiding fees i think in those circumstances the court would be free to say that the interveners are essentially the de facto state working for the attorney general you turn in general in many cases for simultaneously substitute intervening attorney general intervening defendant to defend the lawsuit but to get back to your basic point about whether or not to make the same argument virtually interven d the district court distinguished charles on precisely this basis they said in charles the intervenor was potentially liable because he was making a separate and distinct argument than that and so under the district court if the law is struck down as unconstitutional that's the only circumstances in which she plaintiffs are entitled to cheat if by having the last drop down unconstitutional means the people under the lor liable for the fees that necessarily means that will intervene and we don't owe the plaintiffs anything and you don't want to turn us from doing anything wrong because we've never done anything wrong in the first place and i want to make sure i understand our cement it is utterly irrelevant that we made precisely the same arguments party interest was in responding to judge keenan's point about whether that would make a difference and i'm simply simply trying to illustrate we know it doesn't make a difference not only because i went on this point because if you look at the facts of life none of those things distinguish n if you if the defendants are still defending then you don't ask whether the intervening standards are liable because the state spends just like they were liable for nine hundred thousand dollars minus as long as they were defending the law so it's so saying the prolong ex parte young the real party in interest as the court has said countless times is the stick the commonwealth of virginia is the one who violated plaintiffs right not just the commonwealth of virginia you can't sue the commonwealth of virginia can't sue the general  see the people there implementing the law and therefore violating their civil rights we're not implementing the law we're not in any way depriving them of whatever rights they have into the fourteenth amendment so that it is not a reasonable distinction i've run join appendix one thirty nine we asked for three things number one we asked for the reinstatement of a fee of about seven hundred eighty thousand dollars that was prior to the entry of judge number two we renewed a supplemental motion for seventy three thousand dollars for fees on remaining finally again this is the court's language from paraphrasing close to the text the plain between we went to court we won the state defended the case interveners intervened to defend the case extend litigation accept to the supreme court i would honour's when it went back up to the supreme court the state of virginia again took the side of intervener defendants on standing so on the very issue that we prevailed in the supreme court it was not us versus mr car that i think is most important from my client's name is that all of this the the efforts by one side or the other to say it's you it's you it's you it's you i feel a little bit like a restaurant well i  state your honor i think what i'm saying here though is we were i was not only funding the interveners outstanding i was fighting the state and intervener stand so before we get to the question of zipes which i want to we said that there are two parties who are defendants we have litigated this case this case we think they each bear some amount of fees your honor we all we are asking for though is the full amount of the award and what the may or may not two of them over the maps so if if if ultimately your honor this court comes to the conclusion that i think now when i believe overly cramped you of of  appropriate then the results i hope and this is my my hope is that this court will not have to do what it would otherwise have to do is which is remanded back to the trial court of the trial court decide whether or not the wrong state of virginia argued in the u s supreme court that they thought that their lawsuit that they had standing to pursue their appeal and the u s supreme court disagreed with them eight to zero and so the cost to the i bore that my client wore in the u case has been going on on and i think this court based on the record based on the supreme court record based on the oral argument supreme court this court could simply if it takes the more cramped you have sites could simply shift those costs to the state without having to send it back to low for the proceeding although yes sending it back to further proceeding would be would be an option i don't think it's necessary with respect to sites itself your honor i think  from the attorney general's office the members of the virginia state board of elections as you know the defendants and a unique role in the litigation below and play an equal on appeal in that we don't believe that we really have a dog in this fight argument let me show you why it's it would be inappropriate for this court to enlarge the rights of plaintiffs on appeal we did not move for reconsideration below when we each got a separate field and they didn't cross appeal once it support of their fourth motion for fees their headings defendants and intervener defendants are jointly liable for attorneys sees that that appears throughout all of those in the reply and the third motion so that is clear that both defendants and the rights of an appellate who did not cross appeal you know it's interesting they say on page sixteen of their brief if the court sides with intervenors plaintiffs will be entitled to a full worth of one point three million against the state they have even if that were remand to change it from a sole word against us or against interveners to make it a jointly liable to one that we were jointly responsible for they never attempted to do that even though they asked for the district court said no they didn't move for reconsideration or move to amend the judgment and they didn't cross appeal of course this   to bear their those costs how can an appeal without it being an appeal to issues how can they say you know what we really like those awards to be joint several awards they asked for that relief although they didn't get it and they can't now ask it because they didn't they didn't appeal that issue and so we don't think that we don't think there's reason for a remand anyway because it's not really more factual number right that's right wrong doer but it it didn't have to pay and so the district court was wrong in saying there was a defendant available for seek i would point out that if you want to make the wrong use there's you're sitting here is to stable the plaintiffs in defendants  action plans are the civil rights workers ations if the rule is that if the if the state stops for say you had a republican it's really general didn't really like racial preferences that means any time they intervene organization could go bankrupt because they defend what the state did that that will have a huge to turn effect on the points that sykes made about how we want interveners there because we want and we don't says quite clearly the union intervener incites was blameless because there was no allegation that it violated so every decision of this court every decision the supreme court has made it clear that you blameless unless you violate civil rights all of these additional factors one other obviously and if we had if we unduly were frivolous we prolong the litigation then you could argue that we are not we should and should pay the