separate the successful claims from the unsuccessful claims that the plaintiff had brought and second the trial court concluded that the eighty thousand dollars fee award was reasonable based on or in a row and yes definition of the word success or the meaning  successful in their parking quite next divide that divided divisible from the other claims they should have received fees on that parking claim unfortunately plaintiffs bookkeeping the way that they presented their village costs they did not break out the hours work determine the amount of the c under the proper stat you're on a good day that would be there would be three quarter inch course of action available to the court the court could certainly remarried and then we could it and hopefully with a narrow mandate to responsibility of the plain at of the of the fee applicant and they have not provided a breakdown of what they spent on the pocket so if they feel what could be denied based on that we're not necessarily asking for that but it certainly could be in the note no regret remained parking claim arose from events three months later when the when that the navy allowed other contractors to park at this facility had nothing to do with the movement of the rental  nothing to do with the moving or the parking one of what had to do with telephone lines so your honor i mean you could say that alleged breach of contract and in that sense they did but they they all of reg alleged breaches of contract based on separate facts separate seeking separate damages for the bill for the concrete the damages that were sop were were the replacement of the concretes one hundred dollars for the for the modification they were asking for that money for the modification for three year modification very separate and separate claims now under hensley the court says you have to divide those claims if they are factually and legally divisible from each other and consider the fees on each in this case there was no  is the parking claim because they received money on there that the supreme court farrar advises where recovery of private damages is the purpose of litigation trial court is obligated to give primary consideration to the amount of damages awarded as compared with the amount sop so that is the definition of success money received then received money on the parking claim so the trucker should have done that and then fees should have been a lot it only for the parking place now even if the court is correct that thousand dollars feed reasonable for a four hundred dollars damage claim and under hemsley under ferrar it can't be those cases say the most critical factor in determining reasonable miss is the degree of success obtained now the tr mistreated the play and that was the basis of their whole claim and their feeling can't just limit success to the dollar amount that seems to me what that's what seems to me the mean this this read quote a garden variety contract like you you wrote you're on this case involves no broad public issues so it is not one of those big important cases with broad issues that maybe you have to look past the damage so because of that because of that the basis of the truck works this is the bad faith was and what's improper it should have looked at how much was awarded under hensley the court must compare the amount shot  that we lost out on the prior appeal that happened and but that this court has said that that can't can't it will be the basis of ignoring the fact that he at that point of did not recover any money that was enough to get him over the line it's far as the as far as looking for whether he should recover damages but he was not that's not success that was not a it was a moral victory perhaps but that was not a victory that can be considered successful and i'll give you an example why if and so if you have sort of the you know there's injunctive relief there's everything shot you can talk about these other things but they sought money we have to be able to come up with the amount of money that we get that is that is reasonably applied to the case and be able to offer that to someone and if whole hundred dollars that was cover yes but but not by that not exceeded by this much if this is out of the ballpark could it be eight hundred dollars perhaps could it be a thousand dollars perhaps beyond that we're moving into the under reasonable territory but what it should be is the limited number of hours since we didn't contest the facts and since the plaintiff never submitted a damage claim for the parking it should be you know the time writing the complaint and issue for this court and that is their argument is the trial court awarded too much money but the decision of the amount of attorney's fees if for the trial court and not places on would the amount was calculated i simply for the trial that is correct and that's why this court set this case back to judge smith the last time as i understand the government's argument here is that the trial for properly with me today to pay a higher percentage and everything that we proved that is that they cut off the telephones that they moved the business that they didn't post signs to tell where the business had moved to all of those involved a single issue with common and a core of facts or whether it involves diverse issues it's an issue that the courts have universally held is an issue for the truck  to decide because the truck it is the one that's there the trial court hears the evidence and there is not a single case that says that this is an issue for appeal in other words it's the trial court that makes that handily determination i reasonable alternatives feed in this case would be a million dollars you'd say that was for the trial court well i would say that trial court has discretion and making that decision unless it's clearly abusive but in this case judge smith gave very good reason just like you asked him to and you said it back and he said ok we want you to do something that we don't think you did the first time and that as we watch it consider hensley and we want to can consider the degree of success and we also want you to explain to us the amount well judge smith did that explain to you exactly why but the degree of success was here and what he said is essentially what judge m same i think that takes us directly to the supreme court case of riverside the riverside case as you remember was a case involving they situation where police went into a chicana party and rated the party and apparently abused the people at the party and it went up to the truck but there awarded about two hundred fifty thousand dollars in tourney fees and they were awarded damages where the area of ten to thirty thousand dollars and the ninth circuit affirmed and then went up to the supreme court the supreme court said we consider this in light of hensley wealth the trucker's that it made the exact same award  considering hensley and then it came back to the supreme court and the supreme court and i think this cases it's very similar to the one you're faced with in a lot of ways and the principle law is the same but what the supreme court said there is that congress did not intend for the attorneys fees award to depend on or to require a substantial verdict of any  and it says specifically a page four or five seventy six that attorney fees are not condition upon and need not be proportionate to the damages that a limited that is a consideration hymns they did the same thing and of course this court said the same thing when you reversed this case you said specifically that the amount of damages is totally in the discretion of the trial court and that we will not express opinion as to what that amount is and then the the riverside supreme court went on to say that if you had any rep rule of proportionality which is exactly what the government's arguing for here they did that before judge smith again even after you told them in reversing this case that you that this is not a case where there's going to be any formula or any ratio it's an equitable decision to be made by the truck or they go back to the truck or to make this same argument that it should be proportionate to the mana damages in judge who rejected that but the supreme court in riverside said the same thing and then even farther it said that proportionality would seriously undermine the congressional purpose of the equal access to justice act because congress wants to encourage the enforcement of calling to attention unreasonable conduct by government personnel and it wants to do that even when the amount of damages would not make it feasible that was at page five seventy seven of the supreme court decision in that case so the question here is this court i believe should implement the policy that statute and i think the question you have to ask yourself is this let's suppose we have a situation where there's conduct by the government that is an intentional it's negligent it's innocent but it causes a lot of damage well in that case the trial court could award a big fee let's suppose on the other hand that you have like this case where the conduct of the government is intentional it's in bad faith it's reprehensible and it is the courts say it does not represent the high standards of this government and then there are little or no damages in that case the plaintiff would not be able to recover attorney's fees that's not consistent with what the statute costs for and the whole policy of this statute is to allow individual citizens access to the court by taking away the disincentive the  of having to bring an action for small damages when they've been mistreated by the government and congress has deliberately decided that more important in the government fish as was said in the commission or versus gene case more important in protection of the government money is this policy to number one encourage citizens who don't have the money ordinarily to engage in this kind of litigation and i would point out that this litigation has been going on for fourteen years and to encourage those people to bring actions in order to bring to the attention of the court unreasonable conduct by government employees or government representatives i was going to ask you why i have taken fo i believe he had some tragedies in his life and some things happened to him and that delayed the decision by for five years and then there are course been two appeals here and you know one of the there are the reasons that the supreme court said that we should not the appeal court should not really get involved in what is essentially a factual matter that is the amount of attorney fees is because it encourages appeals and endless litigation and that goes right against the policy of the statute which is to encourage people with smaller resources to bring actions in order to vindicate their rights so by having this case come up or twice we've already kind of undermined the policy of the of the statute i think the first time you're absolutely correct i think judge judge did not did smith did not make known his following of hensley and i think you had an obligation to make him do that but now he's done it and he went through hensley and applied every one of the ensley factors just the way he told them just the way the supreme court told him and he's come back with a decision in this decision he's one that tried the case he's the one that knows of the situation and i would point out he did not set the amount of these fees as damages what he did was he took the total number of hours on the case he decided what are reasonable for the whole case and then he said well you know what the part that wasn't successful was proving lost profits so everything else was successful and so he ducked it the time that was involved in proving lost profits now i think you know there's probably more one more than one way to decide what the prevailing claims were here what the successful and unsuccessful claims were but he perfectly logical way of doing it and i think that this court should defer to the judge he's the one that was there he used a logical means of separating these two things and i would think that he should be  both because he did what was right and secondly because if this court gets into second guessing what are essentially factual determinations you're going to just encourage more peals in these equal access to justice quote necessary has discretion in making this equitable judgment this discretion however must be exercised in light of the considerations we have identified there are limits set by the supreme court on the exercise of that discretion you respect to that the proof of that of the bad faith that there was no finding not only that there was no lost profits but there was no injury related to the bat so it's not that the plaintiffs you know succeeded in proving that they were harmed there's no injury at all general principle and that's what this case held in its prior in the prior decision that expressly help that family on the purpose of e g your honor it is not to encourage people to sue when there's no financial injury not to validate claims not to we can encourage that because there's no way for the government to settle claims like that it is to encourage people to pursue their financial injury so that the government has the opportunity either to settle in with their rights or to challenge them if they're wrong dan thank you mr dylan thank you very much