well your argument next this morning in case twelve nine ninety two re holic gravel company versus the central pension fund so he will far thank you mr chief justice and may please the court twenty five years ago and begin its  concluding otherwise the first circuit below held after dinner which may or may not apply to contractual attorney's fees depending upon whether the fia ward in a particular case is deemed part of the merits or not the first circuits ru inconsistent with each of the core aspects of boudinot ch which is likely why respondents no longer defend it whereas we did it's held that it's rule rick applies regardless of whether the fees or demerits were non merits that distinction is the very foundation of the first circuits rule and whereas within its emphasized the need for clarity consistency predictability and practicality and jurisdictional rules and thus for uniform and bright line rule in this context the first  defended eleven there is in which if it right well it's not a bright line rule justice ginsburg it's a different rule but it's still a case specific fact intensive rule the line is just drawn in a different place move right it's not a bright line rule in a number of respects one of them is that like the first circuit it relies on a distinction between merits and non merits fees more specifically on what respondents call damages fees as opposed to cost fees and boudinot says it's inappropriate to make the sort of case by case determination of whether a particular field board is authorized but i think that's not right mr on the farm i mean the rationale that they use might have something to do with an underlying merits non merits determination but the test is just this a statute to authorize it or is it authorized by contract right and we would say two things about that one of them is sort of a practical point of point about  one is now analytical point a point about logic or more specifically illogical just focusing on whether that's a bright line rule or not in other words whether it's easy to apply or not i thought you were suggesting whatever it's chill about whether it makes any sense or whether it's conceptually justifiable i thought you were suggesting it wasn't easy to apply and it does seem to me that once you say contractual provisions will be treated this way statutory provisions will be treated that way that's not a hard rule to implement we actually think it is a hard rule to implement or at least there are going to be cases where it's hard and in fact this case is an example in this case in the notice of motion for attorney's fees of costs this is  seventy four of the joint appendix respondents invoked only a statute or rests in the supporting affidavit they invoked the statute and the contract the district court interpreted their request apparently to be made under a statute and awarded fees invoking only the statute then the first circuit viewed this case as one in which fees were requested and awarded under a contract and that was the basis sports jurisdictional holding that's now on review before this court so this case an exam is an example of one where it's not always clear that there are many cases where a statute in some capacity in a contract in some capacity or both in play where you potentially have two competing attorney's fees provisions one statutory and one contractual they could be identical in all relevant respects and yet in one of them the party happens to invoke the statutory provision and the other party happens to invoke the contractual provision and under respondent rule you would have two different outcomes but what we think is really fundamentally wrong with respondents position is that at the end of the day it's just the opposite of the rule that this court adopted in boudinot within its recognized that statutory fees  viewed as merits or non merits depending upon the tickler statute or decision along contractual fees are precisely the same some contractual fees defending pending upon the contracts provision in the relevant decision by motion they have to be made the motion has to be made within fourteen days unless the fees are such that they are part of the cause of action and their submitted to a jury fifty four d doesn't say that in a case where the fees are made by motion but they should have been submitted to a jury there are some other appeal ability rule it simply says that in a case where a fee of fear request is made by motion it has to be made within fourteen days i'm i'm a little confused so is your rule that if a theory is made by if a crisis made by motion whether it's contractual or statutory that that then becomes party know whether or not we'll come back later and say you should have given it to the jury well our submission is that it doesn't matter whether it should have been given to a jury or not what matters is whether it was given to the jury and let me just say p a general practice in federal courts as i understand it is that fee requests are not given to juries at the very least the amount of the fee is almost invariably determined by courts not by juries and in fact courts have held that there is no seventh amendment right to have juries determine the amount of attorneys fees in this makes sense when you think about it it does make it a we held that are just circuit court of lower courts have held that this makes sense because most attorneys fees request very much including the fee request in this case go up to the very end of the case and definition when the jury still has the case you know the meter is still going and it's quite difficult indeed it's impossible for a jury to decide what the fear ward should be when there are more fees to follow so what do we do with the auditor scenes which aren't traditional charities and those had been decided in this case so attorneys fees for purposes of this and the problem i mean put justice kagan just to sort of mire together i don't see any problem that i can see in deciding whether a case is contractual or statutory because the judge has to decide if there's a contractual part of it if he's going to deny it he has to decide the contractual part so if it's both it's both the council's contractual eleventh circuit rule applies on the other hand if we don't if we don't follow the eleventh circuit we get into the question of well what about orders fees what about witness fees what about pre litigation attorneys fees what about some language in the contract that that seems to cover attorneys fees but we're not certain  before you know it that could even shade into the merits and so the simple thing to do is just say what the eleventh circuit said so you have one argument that yours isn't really an administrative objection and you have the other argument that that if we follow you there's a big  is fees or any other sort of non attorney professional fees or expert fees or anything else we think are not a problem because the truth of the matter is that that category of fees as a general matter just like attorneys fees  fees that are incurred in attempting to enforce the underlying right or to do is to defend against the enforcement of the underlying right there not some sure of the value of the underlying an eyesore we're going to have as a contract which in its discussion of the merits makes on general mention of fees and now what we have is the initial notice of appeal has to be within thirty days of the judgment when the fee issue is not yet resolved and you're going to try to separate the merits can't you see what i'm worried about with just the sort of mire when i read about these things will be very messy when you get to many contracts i don't i don't think so i mean just think about this from that from a commonsense point of view this was a case where there was a bench trial at the conclusion of the bench trial the parties including respondent submitted propose findings of fact and conclusions of law in which they said judge you should find petitioners liable plaintiffs below and you should  status then a few weeks later they separately submitted something that they called a motion for attorney's fees and costs in which they requested attorneys fees costs and auditors fees all of those things i think the fact that they did it that way is just confirms what i said before which is that as a general proposition at least you know expert fees nonprofessional anon attorney professional fees are not the sorts of things that you get to enforce the underlying right there the what if they hadn't done it that way what if they had listed those these in in their complaint and what if they had argued for them as part of the bench trial are you saying something would depend on that i'm not saying that all i'm saying is that this is the way people litigants generally think about these two different categories of things and it's understandable that this is the way they did it if they had requested auditors fees and if they had requested you know attorneys fees that were incurred at the very beginning before the complaint was filed in connection with their proposed findings of fact and conclusions of law then it may well be that the judge would have awarded them you know with the ordinary damages and they wouldn't have that argument available to them but they chose to include them as i say i think because their intuition if nothing else was that these audit fees and these attorneys fees even attorneys fees incurred before the litigation commenced are attorneys fees in the same sense that the kinds of things that courts decide separately from the merits as far as the so called pre litigation attorneys fees are concerned this is the fallback  second argument that respondents make in their brief and the argument is that because some of the fees required requested were incurred before the complaint was filed or at least at some remote time before the complaint was filed what you have here is not covered by be damage because the rule articulated in boudinot is that it applies to attorneys fees for the litigation in question for the litigation and hand fees attributable to the case and that's the language that respondents rely on in our fallback argument what we would say in response to that is that what boudinot ch meant by that language is that its role does not apply to a case where the attorney fees are for a prior case as opposed to being attributable to the case meaning the case in which the fees are incur so if you have a dispute between a lawyer and a prior a former client over former client hasn't paid fees and there's a lawsuit to recover the fees when it's one appliance situation i wrote it i don't think that's what i meant be a screen strange thing to worry about seems to me it's a fairly infrequent situation as well yes of course it is and not only is i infrequent the situation you have here that gives rise to the question presented in this case just wouldn't arise there because if you're talking about a lawsuit by a lawyer against the former client to recover fees owed by definition the fees are known unquantifiable before the is filed so you would imagine that in the there'd be a liability determination in the award of damages which in that case just happen to be attorneys fees in the case would be over and this situation wouldn't present it why would the case be over presumably you incurred attorney's fee seeking to recover the attorney's fees well it would it would depend on what the you know contract between the lawyer and the client said mr chief justice i suppose it's possible that you could have a contractual fee provision that says we get fees for attempting to recover our fees and then your right you would have that we didn't situation but it would be as to the fees generated in attempting to enforce the underlying right which is exactly what you have here do you think the district  here relied soley on the contract on the contract and on the risk or just on a recess awarding the skis it appears to us justice alito that the district court relied only on the statute that was the  morse these at the trial that they would be interconnected that it would be improper for the jury to hear about either if there were a jury but i what about the auditor's fees can you is there an argument that would supports your side but i'm not sure there is the argument that the auditor fees are also have an effect on what the attorney's fees are should be well are they are they really quite compartmentalise though we say auditors fee should be treated exactly the same what i'm asking if there's a relation between the two sure there are i mean often times auditors or any other sorts of experts are retained to you know assist the lawyers investigate and to the extent auditors have done a certain amount of work when there should be no duplicative attorneys that if so the judge considers both together right i think that's right well but i thought with respect to pretty are pretty big a should attorney's fees you said you can treat those differently because they're set and determined you know what they are it would seem to me in most cases of an auditor's report that's also true but i want to be clear about this because it's an important distinction what i was talking about was a case where a lawyer souza former client as an example where the fees were incurred in a prior case in a different case involving a different the speed and in the case in which the fees are saw that is the dispute that's the case what i would distinguish from that situation is the situation here where lawyers or retained auditors are retained to resolve an underlying dispute the underlying dispute is whether contributions are owed to union benefit fines the lawyers in auditors investigate the case they prepare to litigate it they research potential claims they draft a complaint they file a demand write a demand letter to the other side there are unable to resolve it so they file a lawsuit it's all one case and the fact that some of the fees whether their attorney fees or auditor is were incurred before the complaint was filed is neither here nor there i mean the contract provision issue here authorizes that recovery everybody agrees with that and the truth of the matter is that even under the narrowest imaginable attorneys fees provision surely some fees incurred before the complaint was filed would be recoverable recoverable unless you had a really odd ball statute or contractual provision which made him a trial court needs to know the amount of the pretrial fee used in the room and what they were incurred for civility doesn't give duplicative recovery when he provides for attorney fees for the course of the trial right but if respondents fall back position were correct what that would mean is that in literally every case contractual or statutory you would have to litigants and courts alike would have to search through the request for attorney's fees which are generally voluminous the one in this case runs to more than one hundred pages in the joint appendix this was a three day trial to decide are there any fees here that are non litigation fees and put non litigation in quotation marks and that that has to consequences one is that require sifting through this voluminous record in the second is it requires making a very difficult kind of a value to have judgment about whether this particular pretty complete fee is you know a merits and i put that quotation marks also fee or a non merits fee if it's drafting  complaint maybe that's a non merits fee but if it's you know four months before the complaint was filed and it doesn't have to do with any drafting of a pleading and there's some way to conceptualize that as a merits we would just think it's completely  separate judgment that will not run the the finale of the prior judgement that's right but you're proposing not to a stop parties if they choose to put this issue to a jury if that's right if they don't then they have to treated as the judgment that comes out of the contract dispute as fine the other aspects of that's i think probably biddin itch would not apply in that situation because it would be like the case i was talking about before were lawyers souza former client and the case is just the case about fees i also think though as with the case of a lawyer suing a former client the situation is unlikely to arise at least under this contractual fee provision because by definition in your hypothetical you would know what the fees were at the time you file the case presumably the judgment would be if it was a judgment for the funds yes your intitled to recover costs and here's what the costs are and of case you wouldn't have the separate pending request for attorney's fees m says if you have a case and they the merits of the case are decided liabilities determined damages are awarded but there's a pending request for attorney's fees which may or may not include other types of related professional fees and you want to appeal that initial decision you have to file a notice of appeal within thirty days under either the first circuits rule or the eleventh circuit rule you are going to trip up a lot of people because they may guess wrong and they may think i don't have to follow a notice of appeal because this is a quote merits and quote decision and if it turns out they were wrong and it's easy to think they might be because this is such a sort of you know esoteric kind of distinction what's america's fee and what's not you're going to get people tripped up under either the first circuits or the eleventh circuit or so on auditors fees or anything that might possibly be viewed as falling into the same category as attorneys fees you can wait that would trip the fewest lawyers is that right you you can't wait if you want to if you want to appeal the initial decision if there's a pending right now it's wait but keep but if you don't you can wait and and contest those things i'll wager tom when you when when you appeal from the attorneys right you would have you would have in effect two separate appeals if you want to appeal the attorney's fees decision to the contrary you know that a rule that provision is section twelve ninety one of title twenty eight which speaks of final decisions and what a final decision is under that statute is a decision that either leaves nothing else to be resolved or leaves other things to be resolved but the only other things that are left to be resolved or collateral to the merits and the holding of boudinot is that as a general matter attorneys fees are collateral to the merits and that even when they're not as a matter of the law that authorizes them in the interests of certainty and predictability in uniformity you should treat them as if they are so good in it has already held that in this circumstance the final decision is entered when the initial decision is entered in the attorneys fees or collateral no matter how to characterize it seems to us it would require a very compelling case to have a different rule just because of the source of authority no that's really the the words that make your your point i think not absolutely obvious where when you said which may or may not involve other kinds of fees now at that point i'm thinking well if we follow your rule might be quite a lot of litigation going on about those words may or may not if you follow the opposite rule we've got a clear exception for sacha tory attorneys fees and nothing else all right so so you want to add anything i'm not i'm not entirely sure i'm following the question but if the concern is about the presence of these other than attorneys fees for example auditor's these are economist fees or what have you i mean keep in mind the same the same problem would arise under statutory feel toward the perhaps the most common statutory authorization for fees at least in the federal system is section nine hundred eighty eight of title forty two which is sort of a catch all that applies to nine hundred eighty three auctions it authorizes an fees and nine hundred eighty eight itself authorizes an award of expert fees so it seems to us you can have a different rule for contracts if you if you accept or if you reject the principle submission which is that contract should be treated differently from feldman mr chief justice and may please the court there are two principles that i think resolve this case the first one is that all damages claims no end of matter how small or large have to be resolved before a judgment is final under section twelve ninety one although occasionally petitioners have suggested that the size of the award somehow makes a difference i don't think the court there's any basis to depart from that long settled rule the second is that as this court itself is held in the valar distilling case and i'm sorry in the question of the amount of the trying to speak to the jury there and you know there's conflicting authority on that but i would agree with my friend the general rule is you do have to those when there's a jury submit whether you get the fees to the jury or not amount then your matters to work with these i don't think it's because it's a collateral matter what you submit you do have to submit to the jury whether or not you get the fees that question has to go to the jury and that's because it is part of the marriage one part people get together and make a contract and they decide about their mutual obligations and the consequences of somebody breaching that contract they're defining what the merits of a contract claim is that will come in would about what about a statute that says the pla it is clear is it not that the criterion is not whether it is part of damages no i i was if it if that were the criterion this would have come out the other way i disagree i think that would begin it said is we're go begin it was based on the quite of the question he was asking was are these merits or non merits determinations and then it but it what it said is because of the particular place this comes in in litigation we have to deal with this on a as a categorical matter and it doesn't matter upon the characterization of the fees or whether the fees are deemed to be one of the other because the court had decided that it's indisputable that as a general matter since statute and i think is only true of statute that statutory fee is a general matter like the case acknowledges that that's not always true and the holding says it doesn't matter when it's not true they will still be treated as as separate even though they are damages we're not going to treat them as damages and as as the what the court was as if that was correct in with respect to statutory fees that was an easy issue and good damage the court was quite correct in saying those as it is indisputable that those as a general matter are not a part of the merits of their costs which have never been seen as part of the marriage but that's not true and never has been a contractual damages and discord itself and what i mean is assume a contract which just says if we go to litigation  the prevailing party will pay fees in much the same way that a statute does and now assume lots of contracts basically have that provision as their attorneys provision why wouldn't we just say you know whether it whether the source of  is a contract or a statute makes no difference they're essentially doing the exact same thing i mean i would say that they're not doing the same thing and also the source of law is important because when the whole point is that the law has always been the statutes define what court costs are court costs are basically a narrow segment of thing money that people pay to other under certain circumstances they're defined by twenty eight us in one thousand twenty by this courts will forty three and by the fee shifting statute that we know after boudinot ok but the that's what statute to do in the fact the court said in the united states against idaho in defining costs costs are things that are provided for by rule and i'm sure the court intended statute also but  acknowledged that some of these fees are not cool that i would actually think what the court would be didn't acknowledge was that they're labeled different ways or they are deemed or characterized in different ways court never actually said that they weren't but they quite correctly that statutory fees are costs but as a category mccorkle matter contractual fees are not costs when parties agree in a contract that one is going to pay another a certain amount of money in the event of some something happening with it related to a breach that's what defines the damages that are doing they subsequently said in business and should they are costs even when the statute makes clear that they are damages it as i were saying it doesn't matter what the statute says and i don't see why it should matter what the contract says it i don't i don't think it doesn't matter what the contract says it just matters that it's in a contract because there's a no history well there's a history of statutes defining what costs are there's no history at all of contracts defining things that are our obligations between the parties but that are not part of the merits of a subsequent dispute if we have a different rule for statutory fees and contractual fees will we have problems in some cases and maybe this is an example in determining whether award of fees was based on a contract or based on the statute here the district judge's opinion on fees says a lot about a risk and i don't see any references to the contract and i don't think that they'll be any problem with that at all actually for about three reasons i could start with this case in this case our complaint talks about the contract our motion for summary judgment talked about the contract as a base for  notice motion the notice of motion actually worked and those emotions said this is that was the sequence of events the affidavit was put in on i believe april fourth the news from motion came in the next day and i think actually the reason is because we didn't actually think we the joint and of the joint appendix defendants are liable for those monies pursuant to a receipt and for the reasons detailed in the accompanying wagner affidavit filed on the day before ok it didn't say and for the reasons given and if you look back at j at the affidavit at j seventy five in power graph six as indicated i'm sorry trigraphs three and seventy four in accordance with the collective bargaining agreement the trust agreements and the risk the defendants are liable for all audits audit fees attorneys fees and so on we want to go through this in every case but there is no need to all the only question that you have to ask is why is the was there a contractual damages issue in the case and up that that wouldn't work in this case because that's a situation where there's already been another judgment on the other merits issues in the case there at the time when we put in this affidavit this affidavit was actually i think my friend was shaken because this affidavit was put in right at the end of this problem could be handled you can have a judgment that does not become final until the feet question is decided but if this absent that specific determination their fees motion two weeks after there's been a judgment a case not at the time at the end of the trial before there's any kind of judgment of any sort of a no the petitioner doesn't rely on it but really it's supplemental to justice  point there was a judgment in this case the june judgment and it until it's entitle judgment in a civil case and it says that the interest runs from this date and i know there are cases in which we say that the description the trial judge gives to the judgment is not necessarily conclusive of the final order but it does seem to me that this is what the judge thought he was doing i'm not sure that's right the judge says at the end of the other order he says now this case is concluded and i have to look to see when the actual i mean i don't i think the actually i think the judge thought that the final judgment the case was the one doing the attorneys fees it was maybe running the interest in the other one interpretation from the june seventeenth right that that's correct but i'd like to go back to a couple of other things one is there's no sorting through things that's really a problem first of all there's very few cases that ever have both contract and statutory fees we've looked through every case cited in the papers and court no i think maybe one or two did but in those there was no doubt at all that there were contractual fees that were at issue but more importantly unlike other kinds of contract damages where if you won or lost profits or if you want the cost of some replacement performance you don't have to tell the judge what the legal source of getting those things are you just have to tell the judge i was what i want a title to it there was a breach of contract but with fees you don't guess that just as a matter of saying i want to get my feet you have to give  some source that authorizes that and that usually it is a statute or it's a contract and i parties i think you'll find i couldn't find cases where there was any doubt as working or do i have some doubt as to whether there was statute or contract be well go back to justice alito is a question what are ordinary lawyers going to think with that what they normally think now i guess is this there's a piece of paper separate it's called the judgment counsel and once that goes into the file you have thirty days if you're not going to change that judgment and the fact that you want costs doesn't make a difference now what you want us to say is the fact that you want co sometimes makes a difference it makes a difference when it's non statutory i grant you that's fairly simple but isn't it better to tell the lawyers a man who got what they would say the better to tell the lawyers look counsel piece of paper is there you have thirty days and try to minimize the exceptions to that i don't think it is and there's a number of reasons ok one is that the op what our world does is you filed a notice of appeal after the case is finished aft at the end there under their will you'll necessarily set a trap for the unwary for lawyers who aren't sure or don't know the law or whatever for those people who aren't up on it they're going to fight not miss the earlier notice of appeal and they're going to lose their right to appeal altogether if you adopt additional that would be what would happen if you adopt our rule then that wouldn't happen it would be true there would be people who would file a notice of appeal too early but filing a notice of appeal too early is much less of a problem because if you follow those who feel too early you can cure it by just filing another no circulator and under federal appellate appellate procedure for a there are times when an early notice of actually for it you know attorneys fees are actually very close to that i would also point out that the feet other fees that issue here this is the other problem aside from the fact that there's a trap for the unwary set up by their rule but not by our will and other things being equal procedural rules should be set up so they don't have those kinds of traps but even aside from that they do have to draw a distinction between attorneys fees others fees accountants fees architects fees real estate inspectors fees there's many different kinds of people can put into contracts and say if you breach the contract i want to right to inspect the property i want to right to inspect your books i want to right to figure out whether you've met your covenants in this bond deal or in this business arrangement that we have and you have to pay for it or you have to pay for it if it turns out that you really have reached the covenant or there really is something wrong with the building in all those cases i don't know under i don't know any way to figure out whether the all those other types of professionals that may be  experts the real estate all those things the lawyer simply thinks go also litigation if it's cost of litigation i want that doesn't make a difference i better file in but these are not costs of litigation i mean what the orders are came with what happened in this case and this is not uncommon the there was a suspicion that petitions were not paying the contributions that were due there were no attorneys involved in the case the orders came in to do with their contractually entitled to do which is look at the books that the petitioner's books and figure out whether they had or ha prevail in this case under that in that event but even on attorney's fees i don't care about this case frankly i care about the rule that we're going to be adopting but i think that there's no doubt i think that there is once you start parsing contractual provisions out and saying some of them are marriage based and some are not even though they're all doing the same thing that is they're all saying in the event this is what damages provision i wouldn't be saying that saying there's attorneys fees in there stuff other than the terms fees merits doesn't matter  and even then even attorneys fees if i could just go back to this case for a second because i don't think this is also unusual when the attorneys first came in they didn't come in to sue petitioners they came in because the auditors weren't getting cooperation and being given all the books that they were supposed to be given and their first thing that was involved a certain amount of time at that point was trying to get them to give the books to the auditors which they eventually did ok but those are costs of collection those fees under this contract and many many contracts that are similarly it those are costs costs including attorney fees of collecting money due and those costs are due and payable by petitioners before any case is brought and whether or not any cases brought if it turned out that the auditors had found that there are some contributions that were not made and the orders then and then the respondents the funds came to the to the employer and said you have yourself five thousand dollars in contributions that were made your books were no good and you know we found it and you also another five thousand dollars for the auditor's fees if they were different they might have just paid that they should have paid it and many cases they won't or they might pay one of the other but they're on an exact part that money is totally due and owing under a provision like this it's not a prevailing party provision which is the sort of thing that that statue is almost uniformly half it's covering obligations that one party has to another based on the fact that they didn't comply with their contractual obligations you know another and another reason why it's important that the court pay close attention i think to the will against piecemeal appeals in a case like this and the strong policy that at the very least if there's any doubt you should avoid the piecemeal appeals is that for people in the in again in this kind of situation it can be very very important to know whether you're going to get your fees paid before you have to file a notice of appeal i thought as a procedure was regardless of who  piecemeal appeals i mean they often combine the two in the court of appeals for consideration they can be combined if the district they can be if they come along at the right time and if the district court can and can see to it under will fifty pending by the time the district court rules on the attorneys fees but it can be done and there's always of course but that's true always when the will against a policy against piecemeal appeals applies it always is a case an appellate court can put things together that would otherwise be a part of the point of that rule though it and what i was getting at is for people in that situation of the respondents here we were there was i think a hundred forty three thousand dollars in fees at issue that we have to pay that they have to pay the attorneys in this case and it's very important to them to know whether they have to pay that amount before they decide whether they want to appeal the case or not it's just as important to decide whether they're one appeal that amount and decide how much they're going to get for the basic contributions that was that they also well it would apply but but in the first one to set you free fees case are usually not as broad as estate usually prevailing parties fees they're quite different they look quite different but they usually involve exercise of just require discretion the court may and its discretion order fees nobody's ever written a contract i don't think like that but more importantly in the statutory case the court was quite correct and within it that it's really indisputable that as a general matter statutory fees are cost and costs have never been seen as part of the merits they are defined by statute twenty u s c one thousand twenty one nine hundred eighty eight is just another provision defining cost and extending it a little bit farther are you are you sure that as a general matter contractual provisions do not make attorneys fees costs i've seen a lot of contracts that say you know she'll recover costs including including attorneys fees i think when contracts talk about i don't think there's  very little if any history of contracts actually trying to allocate court costs of the sort that statute i do think they use the word costs this provision here uses the word costs but quite differently uses the word cost to mean expense costs including attorneys collecting payments just like costs including transportation of obtaining subsequent substitute performance if there was a preacher or any provision like that they don't use it in the technical sense of referring to court costs because i'm not quite sure why they w matters i mean you can say attorneys these are costs under a statute and there damages under a contract but why should that control the analysis of what we do it's just which were it be put on it i don't actually think it's the word i think it's the underlying  issue of what the court is doing in the contract case the court is just adjudicating another claim by one party for or against another for some money based on their performance under the contract and the simplest way and the way you have to make the least distinctions is safe all congress was tying into the long tradition of taking litigation costs and extending it a little bit farther and that's something that congress does and if congress wanted to say that contractual attorneys fees are available under some circumstances under however then that would probably be defining costs too especially if they're tied to what goes on in the litigation but when it's a provision like this one and like many many contractual prisons and there's a wide wide variety of them that just talks about what happens when there's a breach and there's go attorneys fees there's auditor's fees there's other kinds of things that other kinds of expenses that the non breaching party house those are just the damages of case the case they've always been seen as the damages of the case and it would be odd if you do start to try to say well these have to be treated like they were costs then it doesn't evidently raise the question what else has to be treated the way it's called costs petitioner said that it you know in this case there was no doubt that anybody had ever in this case that we were action to be paid by the defendant and i'm not sure at all that that would include i don't know any authority that that includes auditors fees but the contract was quite clear costs including attorneys fees of collecting payments and the auditors fees did fit in that in that basket and nobody doubted it throughout the litigation there was no litigation about whether we are entitled under anything to others for it because there's no point in litigating the arista issue because it was clear under the contract and the district court absolutely knew that authors these were involved in the case because the district court awarded them separately and awarded us all the auditor's fees that we saw not just and well just actually relatively small portion of the attorney in any event if our primary arse submission is that the court that contractual attorney's fees have always been seen as damages should continue to be seen as damages act the easiest simplest and best procedur rule is to say that's what happens with contractual fees that's the category that we're dealing with would initially deals with a different category of statutory fees but even if not i do think that in this case the non litigation fees the attorneys fees for a time when they were enforcing the contract which ultimately got enforced and before there was litigation and the auditors fees for examining the books that were films that were doing owing entirely without regard to whether there was to whether there was a judgment  case or there ever was a court case and all those things at the very least should be seen are damages in the case they were due and owing before the case with ever filed and because those were in the case at the very least the judgment wasn't final until were resolved thank you thank you counsel mr hamel far before minutes one rule for statutory fees and one rule for contractual fees is severely flawed both from the point of view of administer ability and from the point of view of logic my friend mr feldman suggested that the fees in this case clearly were sought under a contract and all i would say about that is that it seems to me the colloquy itself that comment precipitated shows how confusing it can be to make the determination mr feldman also suggested that there are a few other examples where you might be seeking fees under contract in the statute keep in mind that there are lots of state statutes that authorize an award of fees in contract cases of different kinds begin a church itself was a case involving an employment dispute which was necessarily a contractual dispute and the colorado statute at issue there provided for the award of fees in employment to students so you can imagine a situation where you have a contract in a statute that say the same thing there's entitle him to fees and yet for whatever reason the party seeking fees invokes one rather than the other and yet the outcome of the respondent rule would depend upon which was invoked mr foam also suggested that our rule presents a trap for the young wary i have to say and i'm having a hard time understanding that the consequences of our rule or that you always have to file after the initial decision and if you do that there won't be any risks it won't be too late and it won't be too early the consequences of either the first circuits rule or the eleven circuits rule or that if you file after the second decision that may be too light too late you won't be able to appeal the first decision but if you file after the first decision it may be too early if it subsequently determined that these are merits fees in the case isn't over and your appeal will be dismissed and you'll have  expended your resources on having an appeal dismissed as to the logic the fundamental promise of response positions is that all statutory fees or costs all contractual fees are damage all i'd say about that is that it's just incorrect there are statutory fees that look a lot like the contractual fees at issue here there are contractual fees that are straightforward prevailing party provisions some of which are bilateral meaning that the defendants can prevail if a defendant recovers attorney's fees under a contract whatever else that contractual provision is it can't be damages boudinot said statutory fees can  merits or non merits we're going to treat them as non merits likewise contractual fees can be merits or non merits there's absolutely no reason to adopt the opposite role for that category of fees that judgment should be reversed thank you count so the case is submitted