preemption claim and our first amendment claim arises from a common nucleus of operative fact the court below concluded that they do not we believe that the co is mistaken because the district court answered the wrong question rather than determining whether our claims arose from the same facts from the same fact pat instead the court determined that our two claims involve different legal analyses the court observed correctly that first amendment analysis involves different considerations and supremacy clause in the process but that doesn't answer the question whether the claims arise from the same facts they do and on this issue the common nucleus lopper to fact issue ordinance that restricted what the quarry could do based on both state grounds and constitutional grounds the case is complicated addresses several issues but at the end of the decision the last two lines in the penal t before the conclusion the court makes clear that when two claims challenge the same statute in that case the same ordinance that means that those claims arise from a common nucleus of operative fact that's exactly the case in our case we challenged the missouri statute based on both preemption and on first amendment grounds and the court ruled on preemption grounds it did not reach our constitution claim just as in roger's group in which the court ruled that in an analogous situation the plaintiff is entitled to his attorney's fees we believe we are here to now what makes a clear i think very clear that the court was mistaken on this issue is the structure and the manner of analysis that the court went through in its opinion in order for us to be eligible for attorney's fees we must be a prevailing party our constitutional claim must be substantial and our claim constitutional claim must arise from the same nucleus of operative fact as  articulator says that some courts articulate that third criterion of reasonably related but that reasonably related is sort of circular the way the courts say that what reasonably related means is that they arise from the same from the same case a controversial law i question whether that's correct analysis because as you say it is circular don't you think the supreme court was saying it has to be more than just arising from the same nucleus it has to that statute and therefore couldn't couldn't independently i understand what happened in the end in smith versus some but i'm saying that the court articulated a requirement that you fee generating claim be reasonably related to your ultimate success and that you cannot rely simply on the fact that your fee generating claims were made during the course of the same litigation and as i look at this case it seems to me that's really what you're doing you're saying wow we want on preemption we also had a first amendment claim that was at least non frivolous and therefore we get fees well why is that why should that be the rule because because that is the law in the a circuit as articulated in rogers group rogers group says exactly that it says that because these took because it and rogers group because the quarries general inge to th know claim it gets over the bar of non frivolous that it gets fees well that's really this that's really the rule of law that you seem to be advocating you think we've already adopted that rule ju as as this court set out in the city of and rogers refers to city if the test is that the allegations of the complaint must raise a substantial constitutional cla sufficient to confer jurisdiction well that's a misleading that to use the word substantial as you know in that context is equated with non frivolous it doesn't mean that it has to have merit or even that it has to be a fifty fifty claim it just has to be non frivolous so when i say you can throw in a merit list claim i mean there are lots of claims that we reject day in day out that we don't call frivolous and order sanctions and say we don't have jurisdiction but there are their weak and what you're saying is if we throw in a weak first amendment claim with a preemption claim we get fees and i wonder why that should be the rule to those who are want to change the rule i don't argue that there are there are relief is that their complaint should be addressed to the legislature to congress not to the courts because the law is clear hundred eighty eight this congress say that i mean this is all based on a footnote in a committee report that was in a footnote in hagen's or says in the mine as i recall is it is there more to it than that that the committee that that language from the committee report is cited in rogers group excited by cases in all circuits and in most circuits i can't say for sure in every circuit but it's widely cited and you've got i think the key overbearing because the what what that case says is that congress wanted to encourage the vindication of constitutional rights while at the same time not undermining the policy of avoiding constitutional duty cation wherever possible while rights or do you think the court though should have to say at least that this was a strong enough constitutional claim to trigger the avoidance canon or something like that there should be some level of scrutiny of the merits of the constitutional claim before you get fees but i think that roger's group and the supreme court cases hagan's versus the vine and mar gagne are the law however even if there were a higher standard we would clearly meet that standard in this case we the our first amendment claim was an equal partner with our preemption claim we argue equally the space we devoted to it was equal and i judge cotton you may remember at the oral argument on the merits the most interesting discussion in the discussion that took the most time was your discussion with counsel for the agents association when the agents association disagreed with the state its allies as to what the proper meaning of advice was and that was a first amendment issue so i think there's no could there's no question that even if there were a much higher standard in this case we were needed another example is you know there was a tennessee case where challenging the same type of statute and the ruling there we or the appendix a fifty four which is part of our preliminary injunction paper papers the ruling there was on first amendment grounds and i think it would be unfair to penalize plaintiffs  we could have brought a case solely on first amendment grounds but we thought we had a very good priya and we thought we had which is a very strong grounds we thought that we had a very strong a strong preemption claim to barry how does it work in the district court then suppose you're right that you you meet these criteria for fees can the district court discount the fia warded all based on the fact that the constitutional claim was never resolved or does the court have to give you one hundred percent as though you won on the constitutional climb well the district court certainly has discretion as to the amount of fees and it has discretion as to with respect to discounting that the fees based on the extent of the relief obtained now we would argue obviously that we are tainted a tremendous amount of relief and that's tremendously beneficial not only to our plaintiff but to all the other please us who could never afford to retain counsel and i meant kenny disk in the court discount based on the fact that the constitution of the fee generating claims were never resolved or a basis for the relief i don't know if the courts have ever addressed that issue well city council there's a long line of cases on frivolous versus non frivolous are you aware of them particularly employment law fox versus vice and the supreme court recent years has been very tough on saying that that be applied here it's nine hundred eighty eight there interpreted i think it could on afraid you're out on not familiar with the fox case but the i think we've got to go back and just just look at the law is has been articulated both by this circuit and by other circuits of the i mean no one has ever that the state has never claimed that our claims are frivolous if you look at these these cases throughout this circuit and other circuits there's been no claim that these cases are frivolous and to the extent that the claim is that to the to the extent that the state really believes the claim  the state has an opportunity to get rid to get rid of the claim at an early stage is good versus robinson and i didn't need to go to the those exotic cases smith versus robinson itself says that close examination the nature of the claims and the relationship the ultimate success required seems to me like you could figure it out from there right can't the district court do that discount based on how it really worked the district court could the district court has discretion to do that and i think it's very important to look at the district court analysis and to see that when the district court says asked the question we are prevailing party it cites the controlling case and they articulate the test from that case and explains that yes under that case under that test we are prevailing party when it comes to the question whether we are whether this case is whether we've raised a substantial claim the district court cites roger as robinson analysis when it was talking about common nucleus because the court does say at one point that the first amendment arguments were not related in any way to the considerations for the supremacy claims it and i wonder if that was a way of saying the first amendment claims were not reasonably related to your own and you fail to meet success go ahead are you saying that's what the district court said in this case i was the part that i was quoting as the  in this case said the first amendment considerations were never examined by the court or the eighth circuit and are not related in any way to the considerations for the plaintiffs supremacy claims and that's where we believe the court  wrong because those are simply those are different legal analyses we challenge the three provisions which of course struck down on both first amendment and preemption grounds we also have to do is your honor might remember from the argument of the merits we also had a due process argument that the provision that allowed the state to punish navigators for other good cause without the finding it violated due process that was not and that and the court below originally said the expressed concern about that said that was a roving commission to punish but that was not a first amendment challenge that was a due process challenge so the court never may please the court the default rule is that each party pays their own attorney's fees the plainest position however would have destroyed that rule and i justifiably shift the cost of preemption litigation onto the states here's do not support an award of attorney's fees they're not asking for all of their fees in this case but how do you deal with all the case law though that says that doesn't mean they're this entitle if the claim is unaddressed but it was raised you have support award of fees but i would submit that there are that exception should not be applied in this case for three primary reasons first regarding the the first reason the exception should not be applied in this case is it would end up with a result where there constitutional claim you have made the problem of the year you say there's no limit to the other side's position but suppose they had a slam dunk winner first amendment claim the state was clearly violating their first memory but it was also preemption basically abandoned all of them and never addressed the merits and chose not to go forward on this is that the reason though that the district court ruled that it did what i think as was discussed earlier the district court addressed that there was no development of the factual record on the first limit disagree with that well i mean they laid out the standard and then they started addressing why they believe that this standard wasn't met they didn't cite to the sniffy robinson case but i think it's appropriate with the case law on the issue and i supreme court actually ruled that the lower court had misapplied the law of who appeared on party was but they alternately decided to affirm the denial fees in that case on different grounds and also point to the appellant's brief in the underlying merits case before this court second reason is that the attack on the federal law and that's really the ironic thing about this case is the point is first amendment claims would apply with equal force to the fordable care act the very act that they used to five the state law printed both the affordable care act and the state la place requirements on a person who voluntarily chooses to engage in this navigator program and i think that's what part of the reason why it's written in this context it's difficult to see where were you would have joined claims right can you elaborate when you say the state has more control in the other situation you mean when the other claim is based on state laws so to me correct so if you have a state law and the argument is it violates some fundamental right of the u constitution the state when they're creating a law while there they have more control over whether or not that's going to come in conflict with the us constitution in the context of preemption because of the supremacy clause they're more they're more subject to the whatever the either the federal agency or the u s congress passes so you can have a state law that's been in place for several years and then the congress already for agency passes a law th  the state says that the court below express reet expressly rejected our first amendment claims that just is not the case both that court and this court both expressly declined to reach the first amendment issue  the state posits the situation of a the federal government coming along and enact in a statute that then creates a question as to whether the statute pre amps a preexisting state law and that's exactly the opposite of what happened here what happened here was there's a federal law and then the state enact a law which clearly in our view both conflicted with the federal law and violated the first amendment and finally your honor i will judge call it an all agree with you that the test for substantiality could be stronger but the law is very clear both the supreme court and this circuit have to find what a common nucleus of operative fact is that it is and that test applied and rogers group that applies here all right thank you very much for the argument in the case submitted the court will deliberate and file an opinion in due course