can recognizing that there is a different burden that has been set forth by the u s supreme court in christiansburg garment company case we believe that the controller o that was a case against only the controller the other cases were against the controller and the department of health services and stanley's are out and i get that sort of responding to  the providers claim and that also that the controller could not withhold the money the controller was not withholding the money that makes this case different than the other cases that were before the court in the other cases it was the department of health services and and it was alleged that the department of health services was with holding the money in this case it was the department of health services that was withholding money  judges obviously making a focusing on the initial play is there anything in the proceedings for the suspect to remain and which indicates attention given to the subsequent to  claim was frivolous unreasonable or groundless or that the plaintiff continued to litigate which is where we are here after it clearly became so it being the claim clearly became so why does a claim clearly become a reasonable they no longer had a claim that make it levels at that point is very much me if you don't agree that it was privileged to begin with and i never quite got to the end of that argument but if you don't agree to that then the christians verse says that office which was not prohibited from from continuing with its audit determine that the provider was overpaid fired over five and a half million dollars and they never appealed that determination now it seems have plenty of money to post a bond is there any evidence of that that they would have the money to post the bond well there's no no but i mean they had all that overpayment it's likely that they had enough money as to just assume that they injunction only stopped only so that the controller could not withhold the money that the controller was withholding but in fact and this is in the record the controller wasn't little in any money it was the state department of health services and i think one moment please and before i get that exact page i want to tell you the government if you just tell us you know you know went off on well ok i just want us a question and if you get the answer five minutes later we don't remember the question ok operated for four years there was nothing the stock controller from going back even though the laboratory was no longer operating the corporation still existed there was absolutely nothing to keep the controller if the court didn't stop the controller from going back  think we are at before the ninth circuit must be given to the district court's order and therefore i think we have to imply that because the court said the initial claim was not frivolous that it therefore did not become frivolous once the  williams case in the ninth circuit and i will tell you i can give you the cite five different times i looked last night and this record the controller made these identical arguments that she's making today that this district court judge in the district court knew very well th the controller always thought the case was frivolous even though she lost except in the ninth circuit on the floor made the argument and the judge for a bully on the record seemed to agree with the argument and then the case disappeared for you know i don't know what happened if you ask a question  judge was saying that they i think the judge it was a status conference it was not a motion for the attorney's fees and i think the judge is talking about i think he read the civil rights statute to say if you're telling party regardless of whether your plan for the senate you should get attorney's