the morning miscreants good morning your honor let's proceed and may it please the court my name is eden brown games and i'm advocating on behalf of preeminent protective services incorporated one of the many small minority owned businesses in the district of columbia which serves the city and employs a number of the city's that is that i think this case illustrates some of the concerns that are inherent with very large and very powerful unions and some of the flaws that can be inherent in the arbitration process while union certainly serve an important function in our society i think that in this case this union has become abusive i think why aren't the arbitration process can play a critical role and could reducing the backlog of court cases and assisting parties and expediently resolving conflicts i think this case illustrates part of the issues with the arbitrator's desire to ensure questions raised about jurisdiction so can you walk us through why you think that the order compelling arbitration and the contempt order are before us as you didn't appeal go to arbitration at the time that the court entered the order except that greentree says that an order like that is not in or lock a tory under before it's final under a three well ad i don't think that the order directing them to arbitration just under the plain language of that arbitration acts that she would have been directly appeal the court then at that time the parties are in a position to be able to appeal whether or not the order how is how is this order compelling arbitration different from the one that was held to be final an appealable in the greentree case because in this case the court retain jurisdiction and continued to exercise its authority throughout this proceeding if the court recognizes the fact that when  have how do you get that if you look at the arbitration order he just grants summary judgment and compels arbitration and the order on its face just grants summary judgments it seems like he's the district court was dissociating himself from the case and i think we can look at see what of what occurred after the judge's order appealable this district has generally taken that position and then there is a well entrenched supreme court case law that essentially stays the same and it describes the rule as well settled and s sanctions there are attorneys fees issues that are still pending and the contempt order looks conditional on its face but we have which seems to tell us that the pendency of fear is doesn't defeat for malady and we have a case from our court called armstrong which says that if an order is conditional in the sense that it's  says here's what you have to pay unless you are a contempt we said that was a final contempt order so how do you get around it in action armstrong well i think this case is a little different because the court did not say here's what you have to pay when initially issuing the order of civil contempt the appeal came within thirty dollars days of its prime and which the court finally said here is what you have to pay and it would just kind of it would it would be nonsensical in the sense that preeminence arguments concerning the propriety of the sanction meaning whether or not it was punitive in nature meaning that it should be treated like civil consents whether or not they have the ability to pay and all of those arguments are not right actually until the parties know what the actual sanction is going to be and so it was conditional consent meaning that if preeminent didn't take some act in the future then the court would take certain acts and and those acts didn't happen when the court initially entered this of a consent order and then of course we didn't know what the court was going to order preeminent to pay finally and still november imposes a conditional contempt and preeminent right which which actually gets purged right because preeminent does arbitrate within one month of that order right so preeminence actually never held in contempt but i think that order does also a separate thing which is impose attorney's fees irrespective of the contempt right i mean the attorney's fees at that point are not connected to the content just sort of you know the contempt is purged but the attorneys fees continue right so it seems if you think of the order is doing those two distinct things then then the order saying that there will be attorneys fees  know is final an appealable as of the june order because it's a determination a final determination that there will be attorneys fees awarded and the only thing left is to figure out the about well let me answer that in few ways indulgence the st issue was that there was some difficulty in determining exactly what it is the court was doing if the court recalls from the record the court actually i believe in the st hearing the court said i'm not going to hold you in contempt at this point and then you know more things happen we get to the court in january and then the court says i'm going to order attorney's fees but it isn't clear under what authority the corps is making that order in january because that the court doesn't actually make a consent finding and so there's this question as to whether the award of fees at that time was pursuant to the court's inherent authority you know some statutory mechanism and so we've raised that issue in the brief and i think it was the responsibility of the court to be clear under which method whether it be contempt or pursuant to consent proceedings or the court's inherent authority as to how you know these attorneys fees awards were going to be issued but then to answer your nd part of your question again it's i think it's what i'm saying earlier about how this award is manifested preeminent would not have been able to appeal the issues with a contempt award meaning whether this award was punitive or compensatory in nature and none of those things were readily apparent until the final amount of the award was in place and so preempts concerns obviously were with the fact of the award and the court wasn't very clear on on how it was issuing this award because as you as you've correctly noted preeminent was found in civil contempt by the order but obviously they were able to it was conditional and they were able to meet the conditions you know that the court imposed by going to arbitration but the rest of the aspect of the order was still kind of in the air until the court actually heard the party's positions and then enter it in the air though under blue dinnick and armstrong as judge says had mentioned though because those cases do seem to suggest that when there's an order saying that there shall be the payment of attorney's fees that is a final an appealable order that i think i think is just katz pointed out it said what the party would pay and in this case it was broken out there wasn't quite the determination as to what the party would actually pay and you're right about that but the order that we held to be final in armstrong it was a coercive civil contempt like this one and it's sad it's said to be executive office of the president that you will be sanctioned x dollars per day unless you purge the contempt by coming into compliance by some future date certain and sounds awfully contingent to me but we said it was fin well there are two parts to our order though that's a little different than what you describe yes that the court here did say you'll pay x dollars per day unless you do something in the future but then the court also said you're going to pay x dollars for some unknown  to be determined because on the fees that's right your contempt or you know that it's hard to tell from the court's orders whether the attorney's fees is a is a penalty under consumed or it's you know the court's inherent order does say that that the fees are to the order says to compensate the plaintiff or the defendants contemptuous and dilatory tactics and regardless of any subsequent purgation of the defendant's contempt which seems to me to decouple the contempt from the attorneys right so even if you were to purge the contempt the court is making clear that there will be attorneys fees awarded it's still tied your honor back to what happened in january because of the court court the district court actually said in january that you're going to have to pay attorney's fees require the parties to put in petitions and didn't say exactly what those fees would be so then we move forward to the point where the quarter's issuing this conditional consent order it's also bootstrapping in the condo the attorneys fees everything that had occurred at least from january going forward into the future and so it just isn't at the point of making the statement that you're in civil contempt of the court initially just said hey i want to make you pay these attorneys fees because adam like what you did or you know you're kind of in contempt and then the court moved after the arbitration i'm sorry to interrupt someone suppose for lack of a better word with it's believed that preeminent had failed to follow its orders whether by the letter and spirit moving forward you know to proceed to arbitration so i mean i think that i think the court minutes you know i have been in a position where they couldn't have made the arguments because they wouldn't of it's existed yet they would have known what if he was going to be and what the problems are going to be in fact again preeminence argument is that this isn't even civil contempt whether or not the parties requested or the judge decided to stay the order i mean i think preeminent did have to continue to arbitration based on the court's directive and then await the final conclusion whether the arbitration award w confirmed or rather it was vacated are altered in some way pursuant to the statute before it can ultimately appeal the court's decision and i think that is actually what preeminent ultimately did and so doing that this court is able to take jurisdiction over the matter just ask you one question on the merits if we were to reach them about the arbiter ability question here the collective bargaining agreement that includes the arbitration clause is between preeminent and the union right yes right not between the individual employees right that a collective bargaining agreement is by definition between preeminent and the union yes yes  i think the problem with the collective bargaining agreement in this instance was whether this was the a clickable collective bargaining agreement so i think the issue that ultimately had to be determined was not whether you could agree that or go to arbitration on a terminations grievance i think the issue was who's collective bargaining agreement was a political because preeminence argument is that it was not the employer of the grievance preeminent couldn't even say other than reading emails that it received from the district of columbia why the grievance had even been terminated and ultimately when the arbitration went forth that the grievance testified that they'd never you know been terminated by a pram and it had been communicated so that fundamental issue was just that whether it was the did get a court to determine and its ram his position that that was the responsibility of the district court rather than the arbitrator because this was not an issue of whether you know the parties were arbitrating  a proper agree the answer whether it was an interpretation of the collective bargaining agreement but instead it was that the very issue of whether you know the contract even applied whether this was the appropriate mechanism to be able to force the parties and to arbitration even the arbitrator the initial arbitrator believed that as well and that's why he says that the arbitration and dismissed it because he believed there was a jurisdictional question that actually should have been resolved by the district court and in this case are court the other way the parties proceeded to arbitration because they were following the district court's orders and ultimately we're here because that that overall issue from the beginning needs to be looked at too but i think more importantly even if the court didn't feel that it could take jurisdiction or or discuss whether or not the district court should have made the ultimate determination i think in looking at the consent order i think this case still has to be reversed because the it's very clear that a consent order has to be very specific it's got to tell a party what they should and shouldn't do and there just isn't any you know evidence in this record that suggests that preeminent whether actually or even so there's just never any evidence of a bill that wasn't paid or you know an arbitration fee that was due or owed by preeminent that didn't occur we just we didn't get to it and so also mentally the parties went to the final arbitration and then the arbitrator made order is supposed to be compensatory in nature it's supposed to compensate or repay or may call a party for what they lost and in this case we never even read received a bill in the record demonstrating what the union actually paid for the conduct that the court considered consummation this or against its its orders and the only evidence submitted in the record was the evidence of the market rate by another union official who said what the typical rate for instance there's no suggestion in any of those cases that a market based feel ward is a criminal sanction well argument i'm sorry those those awards are routinely applied through some civil processes so the point here your honor is that it wasn't a market based thinks it at there was an affidavit that agreement submitted again by a union official that stated what the market rate or the range for the market rate was in the washington metropolitan area that was the only evidence that was actually presented in the record of the market rate and it was about two hundred dollars less your theory as i understand it is the outer boundary of the sanction passed if the not the market what the union actually paid in legal services yes or that he's the reason you say that is if you go up to market rates that makes the sanction that makes the feel ward criminal in nature  absolutely on the point that it wasn't but the union actually paid but not with respect to going up to market rate because in this case we didn't just go up to market rate we exceeded the market rate we went well in above the market rate so yes the premises is that it has to be compensatory in nature and it really just should have been what the union paid absolutely but even if the court were to contemplate that the market rate was a fair rate and it was reasonable this wasn't a market rate case this was a case where the public interest the kearny who can claim market rate isn't that what was going on now that's not what happened even if the court were to determined that based on the union service as kind of a public interest attorney that they could claim market rate they didn't claim that market rate the market rate is was too much under fifty or two hundred dollars to three hundred and fifty dollars an hour they received a rate that was about two hundred and twenty dollars in excess of that and the lackey matrix is not the market rate so that's discrimination it's not cast in the way that you just stated it that it cannot be used for a union cases but it says specifically it's for the employment discrimination and it has another statement that gives kind of like a generalization for cases but i believe here the market rate is determined by the other body of case law that we cited in the brief from the d c circuit that speaks to the prevailing market rates for the industry the attorneys level of experience etc and again the only information that's even in the record is what preeminen presented from another disinterested union official that basically said what the market rate is for attorney fees or range in this area so the fact that the fees awarded in this case exceeded even the market cited in the brief that makes the claim that the lappie matrix isn't necessarily the benchmark for determining the market rate and i think inherent that when i speak to employment discrimination cases i think that the courts are probably considering just the how do you how do you get to a certain point employment discrimination cases are typically contingency based cases the rest that is and hair and the case if you look at the you know regular lacky matrix in d c of a point and an attorney for twenty years is about eight hundred and ninety dollars and the u s attorney's matrix you know it's closer to seven hundred dollars so that's based on risk except in this case we know what the market rate is for union attorneys because there's an the outside lawyers as well the law firms will the outside lawyers that evidence that we submitted spoke to outside lawyers i mean i think there is case law that supports the concept that in house counsel there that their hours if they keep you know accurately  manner and way that the courts typically acknowledged that they can recover for some of the work they do despite the fact that they're salaried and they're paid and house but this is the prevailing rate for outside counsel and just as the court  acknowledged their union attorneys are often considered a public interest attorney and rates are tired typically reduced but again because of the nature and the clear case law and civil consent that it must because compensatory meaning it just is just  shifting statutes i'm having trouble understanding your argument about why union counsel as opposed to company counsel or somebody else should be  treated well i wouldn't focus on who it is i would focus on the industry the work that's being done i mean you can have the same attorney take on a case on behalf of leaving and perhaps do a merger or acquisition and the rates could be different because of the nature of the case but the market for work within the industry grievances determine determinations of collective bargaining agreements arbitrary ations that kind of  work has a certain market rate that unions when they seek counsel typically outside counsel pay in the washington metropolitan area and it isn't the lappie matrix they're there there's evidence that unions aren't paying what the rates are in the lappie matrix i suppose if the union had put on evidence that this is what the washington metropolitan area requires for unions that we'd be having a different conversation but they didn't do that the only evidence in the record is actually just the affidavit that says that this is what unions typically pay for this kind of work in the arbitration context and that is what the court is supposed to look to and that at can't see my time but just to briefly mention another just concern for my client is the court kind of ignoring the evidence about pray minutes ability to pay because this could turn into a situation where you have business official bills being old or held in contempt when when they they absolutely don't have the means or the ability to purge themselves of an obviously consent should be something that someone can pay in order to deter you know and effectively administered unit your burden if you want the sanction used based on the inability to pay i would think it's your burden show that yes i believe that's true and record looked at just a court didn't ignore the evidence looked at the evidence and found that you have discharged your burden  citywide contract and that that was ninety percent of their revenue at the company they also show that they had been the victim of fraud and that they had lost seven hundred and fifty thousand dollars and that this was an issue that was actually being prosecuted by the u s attorney's office in the appeal what would fall under sixteen efore which says that in order to wreck to an arbitration to proceed under a for which is the provision of sorry under section four of the f a a which is talking about here is interlock a tory true because that's in the context of there being other claims in the in the and the losing party doesn't get to claim that the finality is somehow until the arbitration is complete and then what do we do with the fact that while the order orders had issued prior to a final judgment on the merits of the litigation in bird it was a discovery order compelling production of audiotapes in the title seven action in machinist's it was contempt  injunction if the parties continued to amend the complaint and proceed to a final of final judgment on the underlying merits in this case however if i persuaded the court that the main life twenty problems under section twelve d any one about final judgments that would occur if they occurred before prior to the final judgement so for that reason pretty th if they were judgment but a coercive sanction which says it'll be twenty thousand unless you if you are the contempt by such and such date and then twenty thousand every two weeks thereafter you bit baked into that is a need for future proceedings to figure out whether the contempt was purged and how much the sanction should be so you're positing one the peel of the order imposing the sanction on the front hand and then a separate appeal on the back and when the district court says well the contempt wasn't purged in time and you know it was purged in the nd week after so the sanction is forty thousand dollars as opposed to twenty or sixty and that's a separate appeal just seems very strange i understand your inner but that's really an argument against this court's decision enormous right in the attorney's fees context that's also an argument against the supreme court's rule  say that case holds that the theory shoes are collateral to the merits here the merits issues are the order compelling arbitration and we're having this conversation on the assumption that you've won that issue that that was final now we're talking about everything that flows from noncompliance correct and the question here is whether one set of consequences which is her attorney's fees are our coal lateral not to the merits but to a contempt and you can think of the contempt and the fees as just everything back to it's that might happen to a party because it disobeyed disobeyed out judicial line of reasoning that you're proposing now and make delicate distinctions between a few orders which were like damages versus feelers which for what costs and that they apply different rules of finality to each one of you di takes a very broad brush approach he says no matter what the statutory or equitable or contractual basis of the fees litigation over the amount of fisa does not hold the final of the of the underlying order and that applies arguments about how everything that it did in the thirteen months between the between the arbitration order and the contempt order was not in fact consummation but if that thirty day period  and that's contrary to the penelope rules that are set forth in cases like these as well as the u s versus the women if i may turn to the merits of the amount of the fees unless the court has for the questions dissent in that case and that was in fact the very proposition that the majority in covington written by judge edwards rejected saying that the laughing rates state the prevailing work at rate and there are no  but the entire premise of the lodestar jurisprudence both in this court and in the supreme court is that the prevailing hourly rate within the margin it in the district of columbia that's defined by laffey apply argument which is why should we extend those kids though those are all cases involving fee shifting snatch something congress gives the court authority to figure out what is a reasonable rate and the existence of the fee shifting statute is thought to reflect congress's inducement  to have talented lawyers like yourself bring cases that otherwise wouldn't be brought because they want private enforcement in some area all of that is fine but this is civil contempt there is no fee shifting statute so the back ground rule would be the american rule that each side bears its own fees the only exception to that is inherent power which is to be cautiously exercised and we have the supreme court in goodyear telling us that if the sanction is an award of fees it has to be precisely to compensate the the client for the amount it was forced to pay because of the contemptuous conduct and here whatever your motives for lowering your rates to your client the injury to your client is what they had to pay you because of the contemptuous conduct on the other side understood but even one of the earliest yeah so i mean so you're not really answering this question is question is why should is or any case law that as you said there's an old supreme court case which i'm not aware of them not saying it is not there but that hasn't been normally our normal routine is to apply fish shifting statutes and to follow the life in a matrix that's true but has not denied in situations like this in my brief i cited  long line of federal cases that apply the lodestar rates in contempt and in rule thirty seven sanctions cases with the same with is a separation reply i looked and found or just don't remember i'm sorry i don't have that in front of me  full evidentiary record from which it discredited preeminence claim of inability to pay it preeminent has not even provided you with any of the exhibits on either side in the absence of record if you need to go back into the into the e c f dockets to see you'll see that the district court had ample reason to judge from what preeminent said on its own website that it is revenues of twenty five million dollars a year or that it always meets all of its financial obligations so that a fifty thousand dollars fifty one thousand dollar field ward does not seem to be outside the ability to pay and plainly i think that to the extent the court is interested in the question  take a look at judge easterbrook analysis for the same circuit where he says that if it is a circumvention of the bankruptcy code for words to give ad hoc a debt relief because one party claims insolvency where are all the other creditors are not also brought into the process if preeminent generally can't pay it has a remedy under the bankruptcy code and then the bankruptcy court can who you know who is entitle to what percentage of of its obligations but to ask for a one sided debt relief against only one creditor in a not a bankruptcy proceeding effectively frustrate what congress expects  to go backwards so that the court can see that there is something to do here i mean if we just go from the award of attorney's fees and the arguments concerning the attorney's fees the court certainly has jurisdiction to determine whether the fee was proper or whether it came in the right context because that didn't come until november and this case was appealed within thirty days of that particular award and then moving backwards to the civil conditional civil contempt award the court has to consider the fact that because it was conditional the court still had to do something after entering that order it had to say you didn't do what you were supposed to do and here's what we're going to do or you did do what you were supposed to do and here is what we're going to do and the court really didn't do that until if it's this type of order and then the court is wondering how this is and so i guess where i think we just have to look to what happened again the court it says that the case has to be disposed of the case has to be dismissed and the court did not do that the court continued to exercise its  jurisdiction in the very same case you know at as the parties proceeded with respect to the arguments about ability to pay i think there was just a conflation when something is reduced to a judgment versus when it comes in the courts exercise of its inherent authority to have compliance with its orders or consent had it been reduced to a judgment then perhaps of course preeminent could dispose of it through a traditional debt related proceeding but this is a consent award so preeminent can't pay the water then again it's  officials can be jailed and so they actually it becomes like a debtors prison and that way and till they satisfy you know the courts whether or not you can purge yourself of the consent is an important consideration and factor and i think financial statements are more important than what stated on an outdated website and prominent certainly put in its actual financial statements there in the record because they were under seal because of course trade secret aspect of those statements that showed that preeminent actually did not have the money in order to do it and then another thing if there really was an issue based on what was that issue the court should have held a hearing the court did not allow permit the opportunity to have an evidentiary hearing where you know they they affidavit they sent in their financial statements but where there could be this you know competition of whether the internet site was important versus their actual financial statements so i mean i think this is a different context it's not a debt it's not something that can be discharged in bankruptcy it's the court requiring you know that in fact the appellee is actually filed a subsequent order asking for again consent for preeminent not paying before the bonds was put up in this case because before the p p p agreement it didn't even have the