good morning your honor is william gillespie on behalf of plaintiffs and appellants fifteen minutes as long as it is rather short to compress everything that i would like to say your honor so i will if i can concentrate on some highlights you'll have even less time after we ask  this to please bear in mind that the city's burden to prove special circumstances it was their burden and the burden was a heavy one so that sort of the backdrop of this i felt for apply to this kind of case i don't believe it doesn't matter in fact i was and what does if i don't apply for our what legal standard do i apply what tests do i use to determine whether fees are appropriate so the amount that's really as i glean the case for example it's a twenty thirteen case in the circuit judge just resigned as a matter of fact author that and he gave it two steps first of all do the fees vindicate section one hundred eighty eight and its policies and then the second point is do the equities favor the applicants or not favor them for that matter so no four is not the only test but that's the hard question here i mean rely quite heavily on the fact that i understand you have this argument and that is because you didn't ask for the compensatory damages it doesn't matter that you didn't get them but aside from that you bend a lot of time relying on the changes that were brought about during the course of the flood of cation in the city ordinance and what i'm concerned about and i know there is some support for this but how this interacts with the can and problem of of which which is a very difficult standard cause it seems to say ordinarily when that happens you don't get credit for it in the s but there is some case law that seems to say that if you get a nominal damages if you get other relief then maybe you do get credit for it in the face is that basically the difference yes and that's my understanding your honor in fact the benton case versus oregon student assistance commission seems to say that in other words i think it's just english but can anybody say you don't need to get a judgement for example for an injunction or the relief but if some changes brought about  that's your the reason i did is that seems to be if you will the seminal case for for special circumstances what's best for all right a bundle and gets a pittance that seems to be a threshold test and if that's not if you can say yes yes to that initial threshold question then for doesn't apply and i'd say this circuit said the same thing in the stivers case if i may i can quote it but the court probably knows it so that's a principle and yes there are other parts of the o'connor test and i'm prepared to speak for them i'm saying right out of the gate this it should not have been a special circumstance case at least based on f dollar you should be better off because you can ask for more i mean one logic and that would be therefore nobody had to spend time let me getting about them or the side or less a whole bunch of wasted litigation that is true and that's i hadn't thought i'm going to enter but that's that's a that's a valid point but  i don't know that that changes the threshold and the reason i say that is because the language in for without belaboring it is constantly seek obtain seek obtain so seek must be pretty important it appears at least ten times in the case well it's also four goals right yes and three dollars well and maybe more because our one of our points and i don't want to concede it was just three the reason i say that we believe we should be given credit for the repeal of this of the ordinances and those of those i was the although those were not reduced to judgments i believe we should get credit but that's something perhaps for the trial court of the catalyst theory my goodness is that what you're arguing no it's not and in fact if i'm a runner in the benton case they dealt with that precise issue saying that under farrar wait a minute the plaintiff is is claiming that something was changed because of the litigation not in a judgment but it caused some changes and justice rhodes said no that is different the catalyst theory is one thing word that only applies when a plaintiff does not get judgment in the bench in case she did get judgment but then she was  don't know that she argued that the change was there but that the judge commented on it in any case and said no they are different they're distinct from the catalyst case in other words we're not reviving the capital theory which has been knocked out because it can be said this is a statute thank you for the questions to judge gold i believe there is and in fact this was a case that we put in one of our letter briefs that we submit we had two letters briefs this is one of them dated march twenty sixth twenty fifteen the case was from the fifth circuit the title of sanchez versus city of austin site was seven seven four f third eight seven three and zero i can quote that case actually at eighty two and follow the fifth circuit well and is there any circuit that's gone the other way i am not aware of a case that has gone the other way your honor i have not looked in every circuit i did as much research as i can but i'm not aware of one i'm not aware of a case that went the other way thank you for responding on those question thank you very much  seems to expand for try to expand for our by equating plaintiffs who seek only nominal damages because they don't have the proof for actual compensatory damages versus the plaintiffs that don't claim it's because they just they either don't have the proof they don't want to they want to i guess take advantage of of some doctrine but the point is that in for art it only talked about people complaining or see me claiming compensatory damages and to expand that i don't think that's in sync with the doctrine in this circuit at least in the case i would cite for that is vasquez vs workout because the ninth circuit a court's discretion to deny fees under one hundred eighty is very narrow and the fiord should be the rule rather than the exception the defendant has the burden of showing that special circumstances warrant a denial of fees and the defendant's showing must be a strong one so the expansion by saying that people who seek nominal damages there's there are two different classes some that seek them just because they want to make a point and not just make a point but also get their constitutional rights vindicated and those that seek nominees because they know they don't have proof or they don't have real damages i say real but compensatory damages why are we focusing on the real issue here which is not the money the actual relief s and i i don't understand how it's got there but it used benson quite a bit the public interest that was vindicated was that these import five political speech ordinances that were found to be as constitutional were repealed applied to the city for a permit to use amplified and they believe that you don't need a permit i thought oh no no no they said no we don't actually know the city manager and in fact this is in the e r sixty four the city manager wrote a letter back and said no you don't get a permit in fact i don't get permits to anybody and it might interest you to know that i just denied a permit to a large group that was opposing proposition eight way back in two thousand and eight so he was the one that permits so how substantial is this right that was vindicated in this case when we're talking about the use of a bullhorn or not i mean when we think about the importance of constitutional rights and free speech or where does this fall on the spectrum where you  this judgment on the merits but i did say that amplified political speech or amplified speech comes within the first amendment it gave many ground i know that the tell me how this compares to other free speech rights and other free speech because of the case that is now legal so all comers are welcome to use amplify political speech and we're going to beach it could be the opposite opponents from proposition eight it could be mr klein and his people can be anyone in the world so that's that is important the idea of amplify political good morning may please the court the briefs in palin's argument this morning have made clear that when it comes to entitlement to attorneys he's under federal law section one hundred eighty eight with before this court is plain this attempt to take a second bite at the apple when this court is really  i am going to get to that in the sense that what the district it is correct that when it comes to the standard applied the legal test applied that that is subject to dover review but when it comes to the actual application of that test to the facts here but i mean first of all that means that the question of whether or for our applies for the stall is certainly a legal question second of all he said when he was applying the o'connor factors in a case where a plaintiff's seeks prevails in obtaining nominal damages for our instructs that because of the the question here let me take a step back a two step test to a determination of whether fees are recovered ball under section one thousand eighty eight the first step is is the plaintiff or prevailing party we don't have the at issue here the district court recognized that based on receipt of nominal damages on the circuit as how but that isn't the question because the question is what was he seeking and why did he get that was he get well that that is one component of the analysis and of the four are factors  that's the that's the first factor as to what was sought versus what was obtained then there are additional factors as as to what the public goal was that was achieved whether there was a  rule for a circumstance in which you are seeking substantial compensatory damages and to get nominal damages the argument the legal argument is that it doesn't have anything to do with this case because it was never case it was looking at what whether or not the achievement or the success if you will of the plaintiffs was a technical or de minimus in nature such that the only the only reasonable that case and i'm sorry to interrupt yes focusing on the first factor as i understand that first factor for our trip to be talking about money it's the cases you talk about the amount sought and the amount front was easy they got one dollar they were looking for millions that they may have been the quote prevailing party but they didn't really win the case which leads me to believe frier is talking about cases seeking money damages not necessarily this case where plaintiffs the nominal damages were not the driving force the driving force was a change in the law and so help me out with ferrari does it really apply to a case like this as we struggle to find out who's who really won this case once really money is not the issue in this case yes yes it does apply and i think there's a couple of factual things to clarify here while the appellant state that the only thing that they ever sought was nominal so and it wasn't much money anyway they were seeking but it but that's it's really a side issue well but when you are looking at whether what was sought versus what was achieved inter in terms of a dollar amount that is relevant and we do cite cases in our brief or even a succeeded what claims the plaintiff was unsuccessful in determining what's a reasonable fee while recognizing there was some success by the point of c are correct and i think that the district court did just that is the district court did not deny that the plaintiff did have some success but it looked again at the the overarching question that for our instructs us to look at is whether or not the litigation was technically the minima such that the only reasonable fee is no fee there was a statement in the prior panels decision on the motions for the cross motions for summary judgment those appeals that the the city did amend did voluntarily amend you actually if you look your honor at the same memorandum opinion the panels expressly stated that express we declined to make any statement as to whether or not the plaint to fees under this case leaving that for the district court to decide in the first case but that's i think the answer to question that's normal but why isn't that still the law of the case in terms of how we look at the issues now there was the prior night so i could tell said the the plaintiffs achieve something in change of the law so that we have to look at that in terms of wharf except that we assess fees that was a statement that was made but it was never actually a matter that was before the court for a determination there was no evidence that was presented as to what was  wasn't done that as a people to mislead became can district court i mean a district court didn't seem to know you didn't say it wasn't true you just said it wasn't relevant well what the district court  indicated is that it's not that it wasn't relevant it failed to just like in this court declined to credit the plaintiff plaintiff in benton with the statutory that change that was made that followed the filing of the lawsuit this court the district court declined to credit that change to the appellants and if you look in the records i believe it's that supplemental exercise record page one hundred nine there are communications between my colleague the city attorney and appellant counsel in which it was indicated that the city voluntarily unilaterally and without expectation of any any action by the appellants at multiple times amended don't like to interject a question before your time do you agree with your colleague on the other side of the case as to the statement you made about the fifth circuit case with child that in the quote he gave us that doesn't apply when someone doesn't seek compensatory damages then if you don't agree why now if  agree that that's what the fifth circuit says we're asking us to clear the ninth circuit rule that would be in a split with the fifth circuit in other words can you distinguish sanchez i think that what was before the court again in sanchez was a case where the plaintiff only ever sought nominal damages there were no other money issues that were thought in the first and since this is a different situation again there were court should assess independently establish its own rule and really look at farrar for all that instructs and in what was important to far again is the whether or not it was a technical or minimus in nature victory such that the only reasonable fees are no fees at all and one example of that that o'connor gave was a situation in which a plaintiff sought much more than it actually achieved and only achieve nominal damages but justice o'connor specifically said that that was just an example of the nominal damages of a case in which it was a technical victory here we have a situation where maybe if the plaintiff did not see quite the same amount of comp compensatory damages that the plaintiff sought and for are but their victory was no less to minimalists as far as the public goal again this isn't as applied challenge going to your honor's question about the significance of what they achieved the significance in this case it was not a general free speech rights it was not that the city perhaps did every single person from saying anything it was a victory that at one point in time they should have been allowed to use a bullhorn to amplify their speech at certain places in the city and it certain times it's an it's not free speech rights in general and when you compare those to the other rights that have found to be significant in for archetypal cases you have the right to be free from illegal detention the right to be free from excessive force the right to be free from from discrimination in the forces the right is the abstract right and then in the particular case it was the right to be free from something particular so that's the same thing here in the abstract right as a right of free speech and then there's the particular zation i don't see the difference and again i think this really goes back to it is it is different in just and if you look at this court's decision must watch watkins it highlights the fact that in talking about the significance and in that case it was significance to the right to be free from wrongful death and it talks about how death cases and use the fourth cases are much different than cases that don't involve those issues and this is a case where we don't have those issues this right was really not so significant it was as applied only to mr klein well no that's not quite accurate and now the amplified political speech that was probably before is now all comers are welcome and we're going to beach and