list managed by the village of weapons or falls the district court then ruled which we believe was contrary to this this court's determination as a matter of law again that getting into the detailed facts of whether there should or shouldn't be reinstatement that is a matter of law my client had no right to be reinstated an initially as you i'm sure recall some of you run that panel the decision turned on retrospective verses prospective relief and this court agreed with our position at that time that what we are seeking was permissible prospect of relief not retrospective relief which was deemed him permissible however when we went back and brief the issue the court now determined that our client essentially to summarize it didn't have a right private right to that relief which we believe undercuts both the supremacy clause and declaratory judgment provision which would predicate exactly such relief in this case and as well t if you apply what makes you think the town is going to commit contempt there's ongoing hostility between the parties which is one thing that leads me to believe that this extent litigation in state work with regard to related issues there's been a history of animosity between the parties and more importantly as a legal matter i believe that from swann and milliken v bradley and other cases  authority of a court a remedy is to be tailored to the violation here the violation which occurred was that my client was thrown off a list impermissibly the appropriate remedy in that situation that's because both companies had joint ownership rights both companies were operating out of the same building it's the joint ownership is somewhat related of the same building what's the what is the ordinance that has been found to be preempted by federal law the the preeminent ship where men were joined premises premises and that's a requirement for in the in the statute and the point i'm making is very simple there was no basis for this gentleman to be banished from the list other then the violation by this village of the provision of forty nine u s c twelve one five zero c one there was no other asserted reason and in that context reinstatement is the proper and appropriate remedy when new court talks about re application or application depending on how you view it since did whether the errant ordinance is preempted and you got that but now the problem back to judge jacobs question it seems to me is your your  client has not apply now that he's won the preemption argument has not applied to be reinstated so but what does his injury see i think that if you were to is not whether the student who is denied admission to a school based on race really applies to that school that's not the issue the issue is what is the appropriate remedy for the violation and there is  it was denied admission based on race has not brought his action against the defendant pursuant to the supremacy clause you've got your supremacy but as remedy but now what you're trying to do is get the federal court to give your client to two but do something for your client does your client have i don't think so well i do know maybe we ought to try to argue well sorry i'm trying answer your questions when you say do something like apply for relief you start excuse me don't apply to be reinstated or apply to be on the list but it's not a question first will we see applied to be on the list again that really is not the issue the issue was he was thrown off the list him permissibly that's what's been determined and the question is what is the determined it is that the ordinance is preempted by the federal statute and the ordinary for the ordinance is is taught in the ordinance is what caused him to be thrown off the list right so it is logical to assume that the reason it is true in this record the only reason he was thrown off the west was because of the operation of an impermissible ordinance because there is an equitable remedy available to him which source of a remedy i don't agree it is because the costs the cost the purpose of the clause is to ensure that the right which is here right from the statute see the statute is the underlying issue and just let me explain for a moment the statute has certain purposes here deregulation which were already found and never been appealed it's clear why this would be the appropriate remedy and why it would be appropriate is to put the situation with regard to that telling list back in the position which congress intended the only way to do that is to put him back on the list if you don't put him back to tend to anything with respect to your client respectfully congress intended to write a statute which preamp to other statute or scarred and it says statutes that work contrary to it but by the contrary statute which which we agreed is a contrary statute by dint of its application my client was the person who was disadvantaged he is the person who therefore needs to be made whole in order to allow the statute to have its meaning it doesn't have a sorry right it is a technical limit them in that question for prospective injun relief which is what you're seeking now after the prior decision you typically see the defendants named in their official capacities in the complete in this case they're only and individually like in most nine hundred eighty three actions but how  were in jump the prospective injunctive relief if it's just that they are being named in their individual capacities well i believe that the way to do that is that individually one of the defendants at least controls  so if you were ordered to put my client back on the list that would be a sufficient way to do it he does control the list in his individually he controls the list as a private citizen does and only by virtue of the fact that's true he's an second version was passed there was a version from a different version there are two different statutes right there there was a i don't think there was even a statute i think that i think your client was was initially action was initially  the action was initially thrown off the list because it was it had common ownership with alter and then and after that an ordinance was passed saying that you couldn't have to tell companies at the same premises and that is the ordinance that is the orders which was passed after your client was thrown off the list that was found to be preempted alter was not on the list to the extent that that makes things relevant in terms of the question you're asking so although it's not on the current list so even if there was a nother predicate well now we're now we're wheels within wheels ok but i'm just asking you if it is not and let me refine my question is it not true that the ordinance found to be preempted was adopted by the town after the after your client was thrown off the list yes i think that is true and i think it was so and but i think that if but i think the presence of that ordinance is what prevented my quite the reallocation you spoke about is really trying to make it seem as if that just because you have preemption therefore that somehow then precludes the ability of us to refuse injunctive relief under the circumstances in order to place this particular entity back on the list and it was quite clear about this there is a very vast distinction between these in fact the courts have very specifically held that a claim under the supremacy clause that a federal law pre distinct from a claim for enforcement and out in force mean is exactly what the appellant in this particular case is looking for according to the u s supreme court in armstrong respondents contend that our preemption jurisdiction specifically the fact that we have regularly considered whether to enjoin the enforcement of the state laws that are allowed to violate federal law demonstrates that the supremacy clause creates a cause of action for its violation therefore it reinstatement that's not the way that this works we have here a power of the court i'm not saying that the district court doesn't have its power obviously that power does not however derive it's a discretionary precisely the case and that discretionary authority comes from principles of equity because th court has the opportunity there to weigh all of the balance of justice in interest now is it true that part of the decision making process was adopted afterwards with regard to that are that section four well yes it's true is actually as was was stated so the decision making process to prevent them from being on the list then was not part of the issue that had been that had been and if it was if he was the t that comes from is the understanding that and i'm going to go to a u s supreme court case for that what i will say from as far back as one thousand know when i believe that in order to be entitled to equity one must do  believe that the the lower court district court in its discretionary authority must apply equity because we're talking about equitable relief here this really is an essential equitable relief with regard to whether or not an injunction a prospect of injunction should be applied the court can consider many different factors that regard especially one that we were discussing very earlier in our in our conversation with with the with actually and that is here is an entity that even after it was taken off the the list and even after it then was found that there was a preemption still hasn't applied to make itself back on the list and what kind of equity shall we be supporting in other words a party that can conduct itself in that manner but mr sustenance point in all of this one of his points in all of this was his client got kicked off the list because as the town the t pattern ordinance that was preempted at once and so we never should have been kicked off the list in the first instance and all he wants all his client wants is to get back to where he was before the town took this illegal act on the order now what is what's wrong with that argument what's wrong with that argument i believe is that if a if a if an entity believes that that is the case and it has the opportunity and after the decision has been made ok to take it off the list and after there has been now a decision that it's been preempted then why wouldn't they apply again i believe there is an equitable but the point being but he should never have been off the list of the first instance so just get him back there because it was the town that erred by having the ordinance that was preempted well without the ordinance in place when when they were removed what i believe the town did and i think it's quite clear within the record here as well is enforced issues of a principle of equity by saying here is an individual who is scamming the system gaming the game trying to use a whole lot of different factors and circumstances that is placing himself through a single ownership in multiple positions and that clearly is something that the at that point without having the rule in place anyway could be considered but for purposes of the act for the actions was taken pretty room for a correct correct it was that's not that's my bottom line position that regard and furthermore since this is discretionary determination we have to examine whether or not there's decision does not rest on error of was clearly erroneous i mean there's a lot of factors that go into descriptions very important fairness is time lazy only operates one towing service with one truck in this town at this point right now yes that's what i'm asking yes i'm not certain about that judge judge i would not i would not be able to comment on that and towing list for one or both of them on the ground that they're single ownership of two companies each one containing a separate don't truck well of at that point with only one dumptruck two companies sounds an awful lot like a by two two homes having having been for the process of board meetings and having watched how the talent is making its decisions i would not be able to assure you i'm asking a legal question i'm asking whether whether denial on that basis would be barred the injunction probably not and mr sussman points out that there's a bad blood between mr his lazy and the people of the town basically at least the town manager way back when when i first looked at this hated mr pistole said correct as we know this case has been before this court with a tremendously amount of i guess i don't want to see it again i don't want the town based on hatred to turn him down if he makes an application and then it'll be back on the ground that the town is retaliating against him for invoking his his his right to petition the government we'd see it for the third time and the town of weapons of falls unless it has a wonderful flow of taxation is going to bankrupt itself over over over this litigation a very practical approach and i understand your concern i will also say this right now and this is mr susman i had this conversation before there has been a tremendous amount of negotiation and an agreement that was reached between the parties that this will be resolved however we are now at a point mr piss lazing makes a living doing this and i don't deprecate the business of running a tow trucks but it looks like this thing is actually about a hatred personal hatred of people and that just going to lead to  board needed net and we had an agreement on on paper with with mr susman involved and a board meeting approved it and then suddenly thereafter there was a change of mind apparently on mr part and i don't want to see a school on either i do not know what that statuses thank you getting back to some of the legal issues i think that are important here the court just so we're clear beast the district court you did now way the equities council got up and started talking about weighing the equities had it we'd the equity is then the discretion old to accord and weighing equities might be one thing that's don't we assume that a court is exercised discretion when it grants or denies an injunction no i don't what no no no let me let me respectfully respond the answer is no we are the court takes them what categorical formal stic position that the individual seeking the remedy doesn't have the right to the remedy which is what happened here so it's not fair to say that the court weighed the equities he did not respectfully the problem here is very it's there it's really very simple when you have perspective injunctive relief which simply not talking about money damages which is you would work to could be a whole other question here which simply put someone back when they would have been in your honor raised a very important question did it happen before the formal law it did but that doesn't really affect anything this is why the fact that the formal lawful eyes something which violated forty nine twelve five a one c one so did the informal law the inform the practice or the exercise of power in this case was with respect to single ownership not with respect to senate but the impact what i'm saying to the court is that's that implicates the same interests that the court found when it looked at the formal statute impermissible and the supremacy clause did disallow out so we didn't get to that we in other words the same the same point would be made whether it was done formally or informally by disallowed you from engaging in interstate commerce based on this informal private practice it would have been equally impermissible so i don't think that's a distinction with any  you thank you both the reserve decision