and her subsequent written decision making the case that she found the army's conduct to be voluntary and in fact appendix one seventy three to one seventy six in her dismissal order she explained that the army's voluntary conduct demonstrated there  no chance activity with her current on the case to be mixed and the trial court could have at any point issued a ruling during oral argument or subsequent oral argument prior corrective action at the trial court elected not to do so and certainly the trial court did did make those comments and the trial court made clear her belief that corrective action should be taken but the important distinction between this case and the other cases in which or legal conclusions and say they're not consistent with the opinion if if i understand your honor's question whether if the trial court immediately following argument l if the decision is with respect to the prevailing party that there was no order and you get the fees i'm just talking about on the merits on the merits if if everything was the same as the army check corrective action for delivery and so that case applies to hear them she outlines the matter with fully briefed at the time the statements were made the quarter arrived the legal conclusions after considering the merits of the parties and she made the parties aware of these has discussed extensively and prior decisions is that there are must be an actual court effect a change in legal relationship and there was no court affected change here moreover the army's conduct was voluntary  army unilaterally took action without any direction from the court to do so and the trial court's decision on each of fees should be reversed so still a troubling aspect of this if we follow your reasoning is  government agencies can wait and not take any action until you go through the trial process the testimony there's evidence that submitted me that defeats the purpose of the just that can and and and get into a point were richer more difficult to to obtain legal help which in my book can and found that the government and waving its sovereign immunity to award fees there must be certain formalistic if you if you wish to approach it that way court explicitly stated it would not issue in that instance because the army had already active there would have been no merits findings necessary because the case was moot as the trial  perhaps that it considered its position should be x y z now had had this not been a big protest and the army could have engaged in some discussions then had the party settled there would have been no entitlement to fees unless they were somehow reserve rules your honor of that unfortunately but i would say no until there was you personally saying that would not be enough but in this case there's a really big difference in this case the court did that there are two main main factors here according to the test in palmetto which we think is essentially the test that the court applied in this case and it's adopted the same test that was applied in university to delhi which the government has never argued in this case was wrongly decided and that is that there is a resolution of the merits in the case and that the course of the government's corrective action was not truly voluntary because it was taken after the resolution on the merits and in this case  that whereas scalia justice scalia actually women explained what what that meant what the elements that they were looking for in parham that still made a good law in parnham is a really unique case because in that case the corrective the reasoning of the majority opinion but ultimately the parma ham case if the parliament to petition is not the main part it's not really the main point of argument which is really just a secondary argument we're saying that if the court were to find that the action of  the government was actually voluntary that it would still not matter because in the park him case the action the corrective action was taken before the case was even fahed and it never last a circuit set that there a violation of the civil rights act and then were demanded with the ability to enforce that in the future if it ever became necessary so they get the the government emphasise the idea that the  statute in a manner where this is the court's statements at oral argument can't be considered judicial in particular the court statements were made they're basically rulings from the bench of oral argument on the record as a trial john and i often think wow the guy along with counsel was i bound by those you would be no more bound then ate partial motion for summary judgment which is alternately you believe it would be analogous your honor but she is not pretty poor policy i believe in this case the court was very clear that she was not simply saying this is how i believing this is how i feel  just as much as a judge could have granted reconsideration on a partial motion for summary judgment but she had resolved the merits of the case in her statement she was very clear about that she stated knowledge did she say that the decisions were contrary larger egregious irrational but she said that it seems an absolute departure of reality there is no question my mind those are the terms she was using she said there were ample grounds to sustain the protest in she didn't is merely say it wasn't just a suggestion that she would require corrective action she said corrective act quote corrective action should be taken this case discussions have got to be real and corrective action is certainly necessary in this case and then at the a draft decision which not only had those views in it but she had stated at oral arguments on a draft which that's what she referred to it she had drafted say it's a ground correct i don't think that that is the sushi could have but part of the reason she was she was trying essentially to do the government a favor and give them an opportunity to take the corrective action she was going to require they take without her having to issue a written opinion and she specifically said that if she had to write it written opinion it was going to be it could be potentially embarrassing to the government given the fact that worse some discovery issues in the g a o process that briefing entailed in one document it was about one document and that document did not actually had no actual impact on the ultimate resolution of the merits that the court discussed the hearing it was definitely foreclosed on the government when the government didn't request additional everything in this joint session or so by that point there's no more additional briefing for sure and the government hasn't taken respectfully disagree because after she said that she was the rethink had been discussed she later said at the hearing that her views on the case were quote definite and that corrective action was certainly necessary so even  at at that point i think that case at that point the government very taking corrective action so i don't i think that the case was effectively mooted by the fifteen so there was no more opportunit government argued that the court couldn't issue a decision at that point couldn't issue a judgment in our favor at that point so no i don't think there was any opportunity anymore for the gestural and i would just point there would be an opportunity in ethical relief case to essentially void fees by a levin valor corrective action after a resolution of the merits that they said that the petitioner fears only materializes in clay for ethical relief and then they expressed skepticism that there would be that defendants changes in conduct would move the case in these type situations but big protest they do move the case and insead that where the corrective action is taking after a resolution of the merits then the corrective action is best described is involuntary if the government  corrective action before the resolution the merits it could be described as voluntary that was the palmettos courts are i think attempt to try to differentiate the situation where a giving them early notice of how it was ruling on the merits rather than having to wait several weeks to i see my time's up europe you can finish your thought so i think your honor rather than giving them time to if the court is unable to make rulings from the bench like it did in this case and needs to basically hold off to write a written opinion it's going to push repairman's back in the future chill the court for making such statements specifically the movements this question and that is what you're saying is that the government can take a completely frivolous position and  corrective action or enter into a supplement and when the court has actually ruled and with out for example further guidance from the support in determining whether what statements for instance hear from the bench pretty could not be arguments first this part needs not adopt a new standard as is encouraged by the leader of the palmetto cases readily distinguishable there was a partial branch of summary judgment which could have been subject to an interlocutory appeal but also the  that is exactly what happened here at the trial court did not force the government to take any action and similarly department that can and test that a little urges that involves a judgment capable of enforcement which is not the case here