specific issues our north dakota and its industrial commission persons within the meaning of nine hundred eighty three if they are not are the other plaintiffs entitled to recover under section one thousand nine hundred eight for their fees and third other special circumstances that would render an award in this case on just the district court considered these issues and ultimately awarded a pelleas one point three million and attorney's fees we are separately asked the court to overturn that the district court made  missing at the summary judgment phase was any argument or any record in defense of north dakota its industrial commission or the other plaintiffs never addressed north dakota correct yes why didn't you raised in the time north dakota in the industrial commission started to come forward and say here's our basis for saying we have for example qualities auburn standing in something they'd never said before the fee stage of this case and they started actually point to or their industrial commission standing start raising at that time it is of course legally irrelevant when it was raised as an issue that cannot be waived an issue the court must be satisfied it has in order to issue any belief in a case  evidence what are you asking are you are saying we should send it back for the disk or to develop the record on whether the state has standing since the issue was never raised no i think the issue was raised north dakota declined to comport with evidence that time at this point any claim that they have standing in this case and that's based on for example the court's decision in mclean v american economic insurance i would also point out in one case it's called the great burke beach v charter case the case actually this court explained that congress does not have the authority as a matter of statutory law to provide for relief to a party who doesn't meet the constitutional minimums of standing and so the fact that north dakota the industrial commission don't have standing here haven't established it and it's not a matter of record so i won't get into i can't get into whether or not they could or not but but they haven't they've elected not to come forward with that evidence with any evidence that they turning to the private  their claim for relief fails for a different reason and that's because they haven't come forward with evidence that supports their claim as a separate plaintiffs in this case for attorney's fees and he has explained that the fee applicant bears the burden of proof to establish their entitlement and when we look at the record here we have our invoices that are all addressed to the state of north dakota and just you know commission we've put forth put evidence into the record showing that the state of north dakota has in fact paid those fees all of them it appears and there's no evidence of any other fees specific to any other party in response to the a pelleas have come forward and p cases that involve claims where you know a third party pro bono attorney maybe a legal services organization paid fees on behalf of a party and secondly those are not on point here dakota is to represent the state of north dakota and so the fees paid by north dakota are their own buy off i have to be north dakota law says that the attorney general doesn't have authority to represent private individuals and i think one of the cases cited by opposing counsel out of the fifth circuit the united states v terminal transport company case is i think illuminating in the sense that it's a case that involved a title seven case in which the e goes but what's not happening in the transport case is that private party is not asking to recover the e e o c the attorney's fees and that's what's being asked for here they're asking to recover north dakota and they don't have the authority to do so well how is a different from a pro bono situation who are of a party didn't incur any fees or stuck in a problem situation essentially what's happened is that the attorney has front to the cost of the litigation on behalf of the by any attorney you know all this litigation what i'm saying is we have no evidence of what reasonable fees they claim to have occurred because the only evidence we have about fees belongs to north dakota but once you say they were represented by counsel how is it any different from the pro bono situation because they have an obligation to come forward with evidence to support their claim for reasonable fees and all we have are fees that want a state of north dakota who is a matter of law cannot represent them they haven't come forward with evidence to support their claim i can't explain why that's their burden but they haven't come forward with it but what would you say they should have done since they didn't have separate counsel do they have separate counsel i mean to my knowledge opposing counsel is represented the part been the only counsel in this case but i'm not their attorney i can't i can't answer to the decisions that were made about how to structure a sort of geisha and how to pay for it and how to build it so  you know respectfully not the party who has that knowledge finally you know that the district court also erred because i think she failed to the court failed to recognize that there are specific circumstances that would render an award on just in this case as the fee invoices show this was a case in ca by the state of north dakota funded by the state of north dakota and involving an issue of conflicting state policies on energy source says and you know vindicate their civil rights against well heeled state interests obviously when you have a state suing a state those are not those those same interests are not served here and i also point out that this case ultimately resulted in although i know standing was found here this was always a case in which the state of minnesota had never enforced a law despite the fact that had been on the books for several years and never agreed with the exact interpretation of the law that the court ultimately found prevailed i'm going to reserve the rest of my time for a bottle thank you good morning your honour's thomas boyd here on behalf of the am polese appellants assertion that this is a lawsuit by north dakota against minnesota that involved a harmless statute and in which a group of disinterested nominal non governmental freewriting plaintiffs just a go along as window dressing is utterly false and intentionally ignores what actually happened in this case based on electric men kota m r i s and all the other non governmental pelleas are certainly persons who are clearly entitled to assert claims and are injured parties in title two relief under section one thousand nine hundred three and they are clearly prevailing parties who are entitled to award of costs including attorney's fees under section hundred eighty eight b the district court and this court unanimously recognized the fees are awarded to the client not the attorneys you're right that's right around or do we have do we have a case where  two or more co plaintiff sue and the facts reveal that and they're represented by common attorneys and the facts show that the that the pla plaintiff who did not prevail on the merits because of standing or for whatever reason in fact paid the bill and yet and the fees were awarded to the prevailing plaintiffs who did not incur the the expenses first of all that's not our case all of the others is there a case about like that there are numerous cases that provide that the prevailing party does not have to  that the non governmental parties paid nothing in fact what the record may establish in the record wasn't developed because my clients didn't have the burden to establish they actually paid fees in order to recover but what the record reflects is that all all of the parties all of the plaintiffs were obligated to pay our fees and north dakota served as the fiscal agent if the court wishes us to make a record on that which no court has required ever before we can establish that the non governmental party has paid more than half of the fees those were initially paid by north dakota and then through cautionary an arrangement those were reimbursed now  has no right to to have that information because it's not our burden to demonstrate that but if that's critical to this court's analysis we can set that forward now there is no burden the appellate argues we have a burden to establish exactly how much we paid in fees but respectfully whether it's mclean or the myriad of other cases we've we've provided where the services were provided to the prevailing party through pro bono or free of charge or through some third parties assistance or just out of the goodness of the lawyers heart there's no obligation that the party who is the prevailing party has to establish the actually paid fees that's an important distinction between when there is a fee shifting provision under a contract as opposed to a statutory shifting provision there is intended to attempt to advance important policy objectives so there is no burden on the part to earn the epiphanies part as the prevailing party to establish they actually paid fees but again if the court feels it important that's important we can supplement the record either here in the district court but i would submit that that's never been required by any court anywhere earlier there was some discussion about staying in the circuits long standing principle on standing is that stand in for one is standing for all and when we established  thought on this appeal that standing for one provides standing for all but if if you know if that's not the way this court wants to view it north dakota and the industrial commission certainly have standing as much as  us or men koda or based on electric those three are all member owned entities who include members in north dakota north dakota in the industrial commission as the district court found asserted these claims in their quasi sovereign capacity on behalf of and to defend and protect the rights of their citizens in north dakota and to protect their place in the federal system and i would submit that the same members who were protected by m r e us and whose interests were advanced by men code and decent were likewise likewise provided north dakota was standing forward now we certainly pleaded our stand and to the extent that was not sufficient it was come incumbent upon the defendants to make an issue of it i mean to bring it up now after the case i believe defendant's counsel acknowledged that c n n for one was standing for all and i apologize if i miss recall each circuit case law but standing for one is enough to move this case forward on the merits but i guess the question is when you get into fees and your time out whether the state is entitled to fees don't you need a finding or determination whether the state has standing in the discord never made a determination on that one way or the other wasn't raised in the field preceeding that's right if it's jurisdictional the question of whether we have to but can address or instructional at this point when we've got a judgment on behalf of all of the plaintiffs and they're asserting their rights under that judgement as the prevailing party and now the defendants want to reach back to the very beginning of the merits of this case and argue in defense of a fee petition it wasn't important enough on the merits i mean your so now they want to contort that to be able to get  to avoid paying fees judgment says that it's in favor of the state it's in favor of all of the plaintiff saluting the state yes there was never a ruling on the state standing because the court treated it as you say one one for all that's right if i may your honor unusual it is on you as well and it's of the defendant's creation it is not it was raised early on we defeated it we move forward with the merits and by the way they never fees and to seek relief under section one thousand nine hundred three and their kuai sovereign capacity as the non governmental parties have been entitle to do so while there are eleventh amendment concerns when you're dealing relief which is what we were looking for if the district court the summary judgment stage the north dakota plaintiffs have no standing but they're free to fully participate as amicus now we'd have a different situation we wouldn't in fact no we would not know because we would have other parties who are eligible to move forward and who prevailed and are therefore entitled to recover their attorneys fees and those costs under mean what you say about mclean mclean i believe it is quite clear in providing that when when the fees are paid through some third party and i think in that case it was a fund raising arrangement it is not a special circumstance that would cause the otherwise prevailing party to be denied fees in a flame a that's that's mclean but we've also cited several other cases the four circuit bills versus hydras it was irrelevant whether or not the prevailing party actually paid costs or special or legal fees voice vs stoneman's the ninth circuit case it was irrelevant that those legal services were provided by pro bono lawyers the united states supreme court blum versus stenson it was irrelevant that the prevailing party was represented free of charge through legal aid those are all cases cited in our brief likewise parties represented under a contingent fee agreement are not tapped in terms of the amount of fees they can recover and that's another supreme court case blanchard versus bergersen with regard to the other arguments that they made that the appellant has made with regard to special circumstances the most prominent one is they characterize this as a lawsuit by north dakota against minnesota which again is false that's not the case north dakota is a party but there are a myriad of other nine governmental parties so this is a mixed case and north dakota was not asserting its rights as a pure sovereign it was a suppose the argument is that north dakota itself could not pursue its second claim under section one hundred eighty three that would be in conflict with all of the eleventh amendment jurisprudence it would also conflict with the which the u s supreme court took pains to emphasize was a very narrow narrow circumstance of very narrow holding that only dealt with eight a tribe not even a state but i shouldn't say that a tribe not  state but some kind of different entity that was asserting its claims under sovereign immunity to exclude evidence from i think a criminal proceeding that's very different from a state that's asserting a quasi sovereign interest in protecting it citizens in the same way that m r i s was protecting its member communities so i would take issue with the premise of your question you know if they're not a party or if they can't be a person they certainly can't and i would also add if they're not a person then you're saying the private plaintiffs were persons yes absolutely so how would the special circumstance apply that it wouldn't at all meet it why would there there wouldn't be any reason for a special circumstance to deprive those private plaintiffs who congress has said is entitled to recover their fees i would emphasize section one thousand nine hundred three does not exclude states from being persons for purposes of bringing a lawsuit it's the does not restrict who can bring the lawsuit it's only the eleventh amendment that protects the the state actor from being subject to money damages retroactive again the court couldn't have taken more pains and emphasize more that that was a very narrow holding unique to that situation in fact i think told me that in this situation the tr non fee generating claim and the supreme court's well you can still recover fees in the ma yes it's moher if you see any cases that address the recovery then  on both work done for the fee generating claim and the non fijian claim or whether it's only on the fee generating claim i believe that we i believe we've cited some of those cases and i'm authorizes for constitutional claims but but i think you whatever treatment the fees would see would have to reflect the avoidance doctrine the application of the avoidance doctrine itself so as long as those fees so if the voids doctrine causes the party to spend most of its time on anon the claim you think they should recover it so long as the fee be related claim has not been denied and is determined to be substantial which essentially is it it's not frivolous and it's a comment to me you're right that's what they say doesn't the ordinary meaning of substantial certainly we made it here thank you very much for your time ok thank you i want to start out by saying it's a little frustrating to finally hear details about what the private plaintiffs have paid i want to make it clear that defendants in this case have been asking for this for tension agreement for years and it was declined to us it was not put in the record  it is not in the record before this court and what is in the record before this court is evidence of invoices paid by the state of north dakota and proof that they in fact paid those there was a question about this sort of idea of that does not mean that all plaintiffs have shown that they have standing to ask this court to issue them some sort of special relief and what's happening here is north dakota is asking the court to step in force another party to by law take certain actions and the courts certainly would have to have constitutional standing in order to exercise that kind of authority what about the point that the judgment is north dakota and minnesota  power on their behalf and it has to have the constitutional authority under separation of powers to do that i also want to point out quickly as it relates to the section one thousand eighty three analysis in you know very clearly says that states a sovereign state don't have standing  letter also refer to a case called lynch case which is courts decided where it's looked at this question of whether a pleading contained a quasi sovereign claim but in any event there certainly was no effort to come forward and meet that heightened burden that a quasi sovereign