the court names cam barker and i represent the texas state officials of the state of texas did not write a blank check that whenever class counsel filed a motion in this case seeking new injunctive relief or that even if congress did not authorize shifting to fees for this work the state consented to it and that we consented to in two thousand and seven by an agreement that was memorialized in a court order and implicitly by the corrective action order hearing to speak i want to be clear that on that second theory the relevant factor there is not the difficult but the state that's a consent based theory that even if section nine hundred eighty eight doesn't apply we agree to the season so it's appropriate to examine the language that the state used in the agreement itself when you turn to that language it's very similar to the language the six or get had before it in the bin to be case it starts with using present tense language to say that we do agree that the plaintiffs are entitled to recover fees for their counsel's work on the case compare that to been to be where the consent decree said plaintiffs are prevailing parties for purposes of entitlement to an award of attorney's fees and both in be appropriately recognized that while that quote in trying plaintiff's prevailing party status as to the work that had been performed today the real question was that these prior the suit the prevailing party status going forward where the plaintiffs efforts were focus on defending the decree for some stansell modification and that's just what we have before us here and i think we should also look at the specific language in paragraph one of that two thousand seven agreement which is docket number six thirty six it starts with that present tense language that i mentioned which is in contrast with the forward looking language she's later when that agreement addresses only the procedure but then it goes on to describe what makes up the fees that the state was in green bay and keep in mind this agreement is it's called joint motion in connection with two media order that's the two thousand and seven corrective action orders and it contains two sentences spelling out what the fees we are agreeing to entitlement to include in the first and it says includes the fees that are in docket number four hundred that's for the fees from two thousand to july of two thousand and four and then cynics three says that it includes the fees incurred after those conducted four hundred through the date of the remedial order there is no for future the disputes and it does talk about it is that the parties cannot agree on a reasonable amount and it sort of contains that language in the different procedures it sets out in paragraph three doesn't that clearly contemplates that there may be at least at that a minimum that there may be fees in the future that the court would award for doesn't it also seem to imply that the only debate will be over the reasonableness of the fees or not the entitlement to them of plaintiffs briefs after this the court was always finding when awarding annual fees that players prevailed during the time period issues so to come were directly to your question yes i think there graft really doesn't understand the plants will see these for future work and there's a good reason for that because there are some things in the agreement that they have at least a duty to do for example in paragraph two seventy eight of their consent to create this is part of the state whiteness portion of the consent decree requires  motions for further exempt of relief and oppose our feeling of compliance it's like the seventh circuit said an alliance plaintiff who had once we complied with the c a zero and showed our compliance with the decree plaintiffs could have walked away from this satisfied that they performed their duty that a class and that there was no duty in the consent decree or c i a o to raise further litigation powers in this different than the alliance case because and these are the others as contractual basis for recovery then there this separate basis for recovery just as the prevailing koreans are that line of cases about being in extracurricular twined with the original consent decree but here the corrective action order that was entered in two thousand and seven it's very last paragraph specifically contemplates that the end of this time period the parties will meet and try to see where whereas if they can agree and if not both parties should file a motion which is what happened in the state when those motions but wasn't this contemplated as part of the corrective action over this this filing of cross motions and and that also does seem to limit it from these cases where millions in fees or is generated by people for endlessly filing things well i  agree that was contemplated but what is not done is that it's not required that is similar to lines and just to be clear about what's at issue here there were two motions for fees for work performed in two thousand and twelve that was an uncontested and contested motion right and so the contested motion was but we have a force here on appeal that concerns the work that we have assigned to the litigating to the court facing activities and that's what the seventh circuit goodwood in the ghetto case said that when you have post contemplated it's almost nonsensical because there's that would suggest that we were the prevailing parties because we filed a motion as it indicated we prevailed in our motion so that has to be understood as merely setting forth the procedure if you look at that paragraph it's concerned with timing gives a ninety day time line hundred twenty day time line and then it says the court will rule they could have always follow this motion that is nothing new that they have attained it certainly doesn't mention fees at all and so we think it's important though to step back and look at the momentousness of the agreement they said we entered to in two thousand and seven right we agreed to pass fees we knew what those were and we settled those in two thousand and seven they're saying that we wrote a blank check to any future motion they filed or even that when they oppose our motion that we filed pursuant to that paragraph were entitled to seize regardless of whether they prevailed if they prevailed sure but the district court it accepted that reading but look at what it meant when you look at pages six and seven of its order the district court bypasses entirely our argument about the reasonableness of this work which the supreme court instructed the most important factor is the degree of success attained that's henslee discipline the district courts answer to that was i don't have to look at the degree of success or the results of this work because you agreed they can file this motion that just can't be right and that is really a blank check that any motion they fall regardless of reasonableness or success or titles under season it completely negates this court's precedents and the supreme court's precedents finding that the state having followed its own motion and prevailed can be entitled to r language requiring that that's actually consistent with this court's precedents about how you can find a waiver of sovereign immunity it requires a clear waiver so if i think those are arguments on the contract on time theory if i can then shift to the section  compliance with or the need to modify a consent to create that is a separate freestanding issue and you have to consider chameleon party status as to that work that's most of the some of the other cases spell that out more clearly but this court involves and took that approach prepare corrective action plan and submit those to the court we did that we paid fees for each of those years and i'm sure the plaintiffs bill time allowed in counties in each of those years doing things like reviewing the quarterly monitoring courts then there was a conference period from that time we have signed about three hundred twenty hours to work on actual litigation allowed in counties one representative time entry would be a docket number of record number fifty nine to fifty seven five point one hours or january twentieth were undrafted amended enforcement motion and exhibits will be things like that that we assign to the actual litigation activities and that's what's at issue here on this contested contest of these motions there was a separate uncontested motion for six hundred hours of work two hundred forty thousand dollars in fees for two thousand and twelve that was not assigned to any litigation but other activities was uncontested the district court or just actually very recently you have the final approval after class notice and everything dick last week seventh circuit in this group of all recognize that that has to be conceptualized as a freestanding perceiving because there's no necessary future order into which that work feeds unlike prejudgment work and has it's a prevailing pretty high to be assessed as at work when it is it's clear that the state was the real only party and that defendants were not sorry the plaintiffs were not are not entitled to fees if i could just make one final point there was even if the court is inclined to disagree with us on that we are  possible reading of the amended order because of specifically his out of procedure for us to just be reasonable miss and so if the court were to desire not to address the prevailing party issue perhaps it just wants to avoid potential for a circuit conflict there might be a narrower way to let me just say that the the background of this i think what's important to remember is they are trying to dismantle this case dismantle this litigation by denying paying attorneys fees it's necessary when people prevail and people receive the rights cases all the time they win some they lose some they get paid the plaintiff lawyers only when they don't get paid when they lose so now i i understand that and that's typically that's the measure at the threshold step under hensley but that's not that's not what we have here here as good district court found the defendants agreed to this procedure in the corrective action order the court ordered it provides  for the conference process at the end of the corrective action order and it's the conference process that is supposed to mark the possibility of ending  the corrective action order and that section of the degree that's not happening anymore the defendant show up at the conference and they you know basically say and that's it in this case in the leg and counties issue you know we asked how did you address the objectives of the crew they couldn't answer that we asked them to explain how their corrective actions were supposed to improve the leg in county situations when they themselves admitted that the corrective actions they decided to take and they had the discretion to take whatever corrective actions they wanted to the ones they chose to take they knew were meaningless were ineffective we thought we had good reason this goes to the reasonable that's our argument we have good reason to contest you know whether or not they had complied with the leg and counties objectives and whether further action was necessary to reach those objectives they would not discuss that with us that's if they chose not to take advantage of that conference process period that was not our choice that was their choice but let's go back even further do you contend that your prevailing party from all future events that occur in litigation under the c e o a no that's mystery that there is at some point there's a departure from what the c e o a contemplates and authorizes putting aside the one nine hundred eighty eight you agree that there is at some point of departure between what the authority is for an award of fees yes yes and him that's a misstatement of our position nobody here is suggesting we're not arguing that the plaintiffs are entitled to a lifelong attorney's fees for all further actions whatever we can think of  certainly we don't suggest that frivolous actions on our part should be compensated what they have what we agreed to and what they agreed to w we didn't think if we didn't agree with them that they had satisfied the objectives of the degree we didn't agree that no further action was necessary regarding legging counties we were obligated to ask for further action that's what we were obligated to do that's what we agreed to do with the authorization for fees kick in and if you were successful in returning to the court or what instance if you were not successful let's say in your belief you honestly thought that the state was not doing what they were supposed to do and you file something with the court the court says no we think they're fine in that instance well i think at that point well if that's the way we're going to look at it if we're going to go look and see whether plaintiffs were successful on each one of these motions you're going to be seeing a lot of us in this case because there's a lot we don't agree on the the test i think the proper test for that under your recent decision and i believe it was warner in and bomb court i believe if this judge cost and judge dennis you were both there  the reasonableness of our actions shouldn't depend on what it looked like at the time we took those actions their entire argument depends on a retrospective view you know were they successful or not period that's generally not the law in statutory attorney few cases as you said in warner it's certainly not the law anymore in the bankruptcy context and the bankruptcy courts were basically following the practice and civil rights cases and other attorney fee statute cases  fees related to this so i read it tell me if i'm wrong well there i don't think you're correct i'm suggesting we recognize there is a line that has to be drawn somewhere we don't think this case presents here we specifically negotiated for in obtain this process the conference process at the end of the corrective action order where both parties were likely to be filing contested motions but if you filed something before this period where it contemplated that and you you lot you just in the states being difficult were tired of their their roadblocks  so even though you didn't wait as long as the procedures in the corrective action were saving and you lost that would you be able to get fees for something like that i think there's there are at least arguments if we sought contempt outside of this process and were unsuccessful the court would have to consider that under different situations i think you know that's not something specifically anticipated here on the other hand the decree does provide for us to bring to the court's attention issues of noncompliance and my guess is that at that point a reasonable analysis prospect of lee you know prospect of reasonable analysis probably would apply but that that like i say that's not what we have here here we've got you know that this further action provision that was specifically agreed to we had good reason for bringing it and you know if we look at the panel's decision statewide  represents a sea change in open tension represents a sea change i should say in the law governing injunctions and decrees the court there explicitly disregarded the trial court's past treatment of concepts such as effectiveness which the parties relied on when they negotiated the corrective action orders but suddenly all that prior treatment was disregarded the court also sidestepped i should say i mean it's the only case i've seen where the defendants did not have to address the objectives of the that the panel is coming down and they invented a new law saying essentially that everything that you create every provision has to have a sunset provision it has to have an an sit down and agree to consent decrees they're often not able to reach agreement on that and as a result more general terms are used and it's up to the court to interpret them but there's a lot of different theories that are sort of lurking out here about how you might be able to obtained feed it seems to me the district court relied on i guess what the state's council is calling the contractual there that there was an agreement that they would pay future fees if you're claiming a contractual entitle me into fees and it seems to me that you're you're going to have that be somewhere in the contract where where in the any of these agreements is the language in which they didn't just agree to be a process set up for litigating fees but agree that you'd be entitled to fees for future work after two thousand and seven i believe it's in the the first paragraph  you know i read that as being the first sentence in the last sentence of the first paragraph cover the entire order governor well the paragraph covers the entire order the first and last pair sentences are specifically limited to past these but the rest of that paragraph covers all th if that were a contract you different paragraphs in a contract in each you typically read the language in each paragraph to relate to that the issue in that paragraph and as you say the first paragraph is talking about time up through first the first paragraph you've got to parse it out by sentence it does not say this paragraph only governors passed these which the second paragraph does say it does not say this paragraph doesn't cover future fees it doesn't say it's not time specific at all on it covers the entire issue of fees and i think the first and last  sentences you know if you limit themselves to the middle of that paragraph cup covers all the tourney's fees that's the way the district court read it and that's that's another thing the district court you know read this agreement as come furring prevailing party status on us at least for the purposes of the corrective action order defendants come in with i think what's a creative and fanciful interpretation that has no real authority  they read it differently than the district court read essentially the district court's own order surely the district court is entitle to considerable deference on that and certainly it depends on the you know the only if it's the judge you entered the agreement well there judge shell did not enter the corrective action order or this document six sixty but he is the one who has lived with the case i believe said it's two thousand and nine the it says what it says another thing in the context of the contract there is  strenuously did not concede prevailing party status they strenuously you know reserve the right right to contest any future of these suddenly after documents six sixty that drops out of their practice after that event documenting the agreement in six sixty they routinely paid the attorney's fees without any sort of reservation it's because they had agreed that the plaintiffs were prevailing parties but you lost a motion before this one with the lagging counties no no that plaintiffs had been entirely successful until this order like they're paying fees when you're successful  that's because i'm not sure how significant that is that they finally won something and that's why they're saying you're no longer prevailing board well that that's that's going to i'm afraid that's one of the thing that's going to come up now they are claiming that we're not entitle the fees for ending of our monitoring activities  they have back to my first point there are there you are attempting to leverage the attorney for the issue into determining the outcome in the existence of this entire case they have refused of their brief in this case they want to end the litigation by cutting off fees our clients negotiated for this role for their the defendants agreed to this role for plaintiff's counsel there was no requirement that it be successful or not successful in fact the ultimate goal in  case like this is supposed to be for the defendants to satisfy the objectives of the decree and then it goes away does that mean if they really started i'm not contending behalf but if they really started trying to end it cheating the objectives of the decree does that mean we no longer get plaintiffs counsel even though they have these obligations don't get paid it can't me on they knew when they agreed to this role for plaintiffs counsel that that was essential to the remains and that would it would require that plaintiffs counsel be compensated  what is the role of bias counsel excuse me what is their own plan of scouse we've got in each corrective action or do we have different obligations  in the legging counties case we basically were relegated to reading the quarterly reports and we could comment on but we couldn't have any say in what they chose to be corrective actions we could make it known if we agreed or disagreed with their corrective actions and we generally told them we don't think you do it enough and they have benchley admitted that they were they weren't doing anything they thought was effect e and then we also have the right to seek further action in order to come into compliance with the decree that's our role as far as legging counties some of the other corrective action orders have more involvement by plaintiff's counsel but probably what's even more significant is those monitoring functions in the fifth circuit traditionally compensable the other cases relied on by the defendants alliance  going to be you know there were other parties appointed to do the monitoring that's not the case here that's on our shoulders  thank you thank you s consent theory here that it in other words goes beyond section one thousand nine hundred eight then the authority to word these fees terms on what we consented to that's the language in the agreement this is just a contract interpretation dispute the district court had no special insight into what we meant by our words and he points out that if this is a different judge to approve that order which is true force it's also worth noting that three judges on the six circuit reviewing very similar language understood that it did not cover future fees so again there's just no difference here it's just interpret in the language of the everyman with respect to its text and its context considering the magnitude of what it is they say you're free to use trigger against arguments about the objectives of the degree and what we allegedly admitted were were or weren't working we strongly disagree with all that but that's not at issue here they did not appeal from the district court's order finding that we had satisfied life in county ca oh if you could support the court is concerned that there might not be any basis for him to plan his work wasn't reasonable it really need only look at required at the very least one titled agreement on that mr gergen argued about policy and the need for these fees to promote civil rights litigation is of course congress makes the judgment about when the shifting is need to be appropriate and as justice brennan pointed there the defendants had paid fees for eighteen years but they objected in the one nine hundred eighty year when the plane is filed a failed contempt motion that's pretty much where we're at here it's also worth noting that the original consent decree contained no  addressing fees we in two thousand and seven we reached the agreement that for future fees that would be this conferencing period in time in period for debating reasonable nyssa future fees and that's why you see it each year after two thousand and seven when  approving our settlement fees it's always finding that plane is trivial quote during the time period at issue here that's in the district court's orders all the motions noted in plaintiff's briefs no note nineteen are away to three procedure i'm not sorry the final sentence of the c e o about the procedure after the conference period ends somehow concerns fees which is just not right there's no mention of c's anywhere in there in fact that paragraph the final minutes of the c e o says that either party m motion if that were meant to if that were somehow encompassing feel that would mean that if the state filed a motion as it did here and we lost that we could still come and say well the c e o lots of plaited that we could follow motion as we could even if the