thank you judge rogers and me please the court michael kirk on behalf of the state of tennessee the district court awarded the plaintiffs over five hundred fifty thousand dollars in attorney so he's in expenses largely for work done on contempt proceedings in two thousand and eight and two thousand and nine the state vigorously contested all of the allegations in the contempt motion in the court made no findings on any of the contempt allegations and certainly no findings that the state had violated any of the remedial orders where the two thousand and six settlement agreement is alleged in the contempt motion in the district court did not grant the content motion or order or any other relief instead the court suspended the contempt proceedings in the summer of two thousand and nine and subsequently entered an order striking the motion from the docket without prejudice people first has never renewed its motion nevertheless the court below held that the people first to prevail and it did so on the basis of two agreed orders that were entered two years after the completion of the contempt proceedings they provided for the disposition of fine moneys that had been held in the registry of the court as a result of contempt findings back in the late one nine hundred ninety s there was over four point five million dollars sitting in the registry of the court and in two thousand and eleven as the case was winding toward its completion the three parties in the case the united states the state in people first all recognized that if the case ended with this money sitting in the clerk's registry it would flow to the united states treasury and none of the parties wanted to see that happen so they agreed to these two orders that provided for the disposition of these monies neither order said anything at all about the two years ago contempt motion the contempt motion it's not an injunction prohibiting the state from taking certain actions and it had sought an order requiring the state to compensate individual class members these agreed upon fine money orders did not enter any injunction against the state and did not require the state to compensate the class members indeed these are applying orders have got to be tied t the merits correct yes your honor and i meant on that i'd be happy to and the sort of the bucket i would put that into from the bin to be cases the court clearly held that the orders must result from the work done there is nothing in the record of this case that suggests that either of those fine monies resulted from the work done two years earlier in the contempt motion well i mean let me just ask you about that i mean i understand your argument is kind of a causation are you but i wonder if at least one can discern a relationship between certain our geisha ins in the content motion in these two orders specifically the content motion as i understand it talks about a lack complained about a lack of a written policy regarding subsidies and that that would present a risk that i guess the people who were moving out of the facility would be able to get adequate housing number one and number two they talked about very complained about this old who you know not necessarily providing necessary services and time but before i do i want to make an overarching point ok the clear inquiry here is whether the work done on the contempt motion resulted in the two years later order and you've identified at a very high level of generality and obvious that we discussed in our briefs want the only conceivable connection with regard to each order first the house the allegation in the complaint in the content motion and as you know one sentence passing allegation was that the state doesn't have an adequate policy and that might lead to somehow depriving them of subsidies even though there was no allegation that they were being deprived the subsidies the order the  fine money order had nothing to do with ordering the state to issue a written policy it had nothing to do with the subsidies that the state was providing for rental housing for these class members there is a connection at the level of housing only in the sense the order required that the money go to this independent nonprofit housing foundation for use to purchase housing stock and you could argue that that provides a benefit in the stock would be not just for class members but anybody in west tennessee with developmentally disabled disability and so you could say that there is a connection only at the highest level of generality in that both related to house we could meet and if there's any doubt on this point if i could finish the point your honor i would urge the court to look at the overarching order governing use of the fine monies because that in no uncertain terms prohibits the use of those monies to carry out any of the state's obligations under the remedial or the state had no obligation under any remedial order to create this housing foundation or or to assist in the purchase of housing stock so i don't see how it could in any way relate to the underwriting relieve similar point with regard to the assessment tool there was nothing in the in the in the original orders that said anything at all about assessment tools in the content motion they did complain about the scoring on this tool the agreed upon order disposing of the fine money did nothing with the scoring on the tool instead what it said is all the parties agree we want to ne again can i say that at a high level of generality there is absolutely no relation no but i would submit that the relation is so general and when you look at all the other evidence in the record the fact that the contempt motions were not released i mean think about that for a moment the their theory of the case is that but for all the work they done in these contempt motions we would never of agreed to these orders allowing millions of dollars to flow to us that makes no sense as a matter of common sense it's a really a but for causation test i mean the results and i mean i've been using i think it's it's harder than that i think it's approximate cost test  that the court used the word resulted in the most cases it's going to be playing on the record because in most cases the subsequent order is going to say we resolve the contempt motion by providing this relief and you're released think about the situation here though supposedly we entered these agreed orders to get out from underneath these contempt motions yet there's no mention of them and no release the next day after those orders were entered they could have turned around and refiled their contempt motion and we would have had defended on the merits and your honor the resulted in is only one of four grounds that i have for across the board reversal and i've got a fifth for vacant chair of ninety percent of the order so let me turn to my other three under the bin to be test the first thing you're supposed to look at is was the work necessary to enforce any order of the court on the merits of the district court nor the plaintiffs in any other briefing in this court have ever identified any provision of any merits order that was being enforced by that contemporary well i mean pin to be came down after the district court's decision so it's understandable the court didn't speak in those terms it is your o i mean if if the court hasn't addressed it is that a reason simply to vacate i would respectfully submit judge catholics that it's not the reversal is required here and let me give you three reasons for that reason number one that's not what bin to be did then to be didn't say we've got this new test district court you didn't apply it we'll send it back you applied and in the course of the opinion the court emphasized the importance of not letting these attorneys disputes explode into a lot of satellite collateral litigation and i think that was part of what drove the court to not simply announce the test but to actually apply it where it could now it's sent it back when there were places where there were questions of fact it hadn't been resolved but the court went through you know in a lengthy opinion different categories of fees being claimed and applied it's test i'm asking you to do the same thing here point number two there are no questions of fact you can decide this on the record you have before you just it's been to be decided many of the subsidiary cases some serious issues in that case they haven't that the plaintiffs have and find give the district court a pass because he didn't have been to be but the have never shown come forward and said this is this is the provision of the remedial order that it's necessary that we're trying to enforce on the second part of the bin to be test for where he got the work didn't result in the relief point number two on the second part of the bin to be test none of the relief that came out of the fine money orders was directed against the state in that regard your honor i do want to direct the court's attention to a case that was not cited in the briefs but that i think is directly on point on this in kentucky versus graham and it's four seventy three us one fifty nine at page one sixty four the supreme court held that under nine hundred eighty eight only the party legally responsible for the relief on the merits may be required to pay fees under section nine hundred eighty eight the state was not legally responsible for the relief granted in the fine money orders that money came from the united states there was no belief entered against the state in the fine money orders and on that ground alone you can reverse isn't a test whether they obtained relief for their client and not so much you know who it was extracted from it's both judge have which that's what kentucky versus graham held in that case there were multiple parties in the case it case in part as my lights on that let me finish my answer it was a case where it's been brought against both the state and some troopers i think for a fourth amendment violation liability was only imposed against the troopers yet to this court held that the state could be liable for the one thousand nine hundred eight fees even though the relief which the plaintiffs indisputable got had not come from the state and the supreme court squarely held that only the legal the party legally responsible for the relief on the merits can be hit for nine hundred eighty eight fees to the extent you think that this relief is otherwise eligible the relief from the fine money orders it fails on that ground because it didn't come from the state i know your time's up i have one more question most you know before going to be wasn't the law in the circuit you could recover for monitoring activity is that true or not it's basically true from then and been to be isn't it also true that the court didn't decide the extent to which monitoring compliance is compensable is that true that's the court was schizo pranic they dropped the footnote saying that they were not addressing it yet at least one of their rulings did go to something that was monitoring but let me go to your underly me what that does is sort of leave it at least it's not of it's a small part of what you're challenging but at least that part seems to be under our presidents was was legitimate let me explain why that's wrong driver's well been to be did not if you take the footnote at its face that it was not deciding monitoring and you ignore the in assess it does say that my only point is later in the opinion they specifically held that work done to look at individual cases to see if the state is properly complying with the consent decree they vacated that relief and that's exactly what the monitoring work is in this case but but let me take your premise that w the footnote is what controls you can still get to this and here's why the prior circuit precedent is the headaches case from the late one nine hundred ninety s that the plaintiffs rely on and the delaware valley case and even though been to be didn't address monitoring it did address the impact of those two precedents and it held that in the wake of the buckhannon case that those presidents had been limited it and it basically held in delaware valley monitoring was authorized by the supreme court but it led to a subsequent order granting relief i think that was the same is as true and haddix in this case the small little bit of monitoring we have did not lead to any new relief so you judge rogers i would say you're no more bound by haddix in delaware valley than been to be was you're in exactly the same shoes the bin to be panel was in and you should reach the same result they reached which was that haddocks in delaware valley are now limited by the subsequent supreme court decision in buckhannon and the limitation is simply this that  monitoring work must lead to some kind of order providing relief that's what been to be held and that's what i'd urge you to hold here if i could retain my rebuff yes you have your vote thank you so much for  and in addition your honor may remember from earlier arguments in this case due to grand who was formerly with the public interest law center now in private practice and mr jack very very who is in private practice in nashville tennessee and both of those lawyers have been with this case since before he since this case was originally filed in nashville tennessee life's work more or less it has been a portion of our life's work and i was exaggerating i know you've done a lot of th ings well well the point is that we are extremely proud of the work that we have done in this case we are extremely proud with the results that we helped achieve is just rogers knows this case developed from a virtually a nascent community system with most of the class members living in arlington in the institution confined in an institution into a system a robust system of community supports  services that the court has now determined that is sustainable and creates a sustainable remedy for those who were at in the institution and at risk of being institutionalized i think everybody think we're agreed that's highly laudable but the questions we force morning i would suggest are a lot more specific than this lovel certainly your honor terms of whether you know underpin to be all of the awar anticipated to be because what bent the overarching teaching a bit to be is that how do we create a mechanism for objective lee determining whether the work for which payment is sought has value in the context of the litigation but the court did create that mechanism and the result is a pretty specific test and it is not the i'm sorry or not so that we're bound to apply and it is not the test that  kirk cited to you it has to test a bit to be does not contain a causal relationship in the sense that it was you and mr kerr discussed what ben to be requires once prevailing party status is determined what it requires is that an action by the plaintiff to defend or in force a prior consent decree must be necessary to enforce the prior order so manned and result in a subsequent court order or agency determination that at the very least secures plaintiff's initial success in obtaining the consent decree at the very least secure has played us initial success in obtaining the original to create mr results is in there to the original decree it doesn't mr kirk wants to translate that to mean that there has to be a fine order that finds that the state is in contempt that results in a subsequent court order yes and here we have the two orders that you that your honor you know that we have argued in that your honor is recognized of the question now where the final hours connected when the motion was dismissed by same question i'm sorry no it's right how are the final orders connected when the district court dismissed the contempt motion and as opposing counsel points out the motion was not renewed the that leads to a fight to the death mentality i mean but that's a policy argument let's start with the record based answer how how did the content motion result in all of the work frankly in the content motion which covered a lot of different allegations how did that all result in these two or well there's a fact they an actual causal connection because the time records clearly reflect that these discussions occurred the settle the discussions regarding the to the the fine money order in the system order all occurred in the aftermath of the of the recessing of the content of proceeding is recognized on the record for the purpose of settlement discussions so there is atemporal straight line but there's also if i may be permitted to read from the system order which which addresses directly this whole issue of the improper as alleged in the contemporary eating the improper use of the i kept to restrict the delivery of services to class members and what the court wrecked what the parties recognise and what's incorporated in the court's order and pick on the system is if i may the i camp is one which is wonder attack in the content proceeding the i cap as one of the generally accepted assessment tools available to say the states however it is a deficit driven tool that out was a person's needs but in terms of what the person cannot do the i kept does not promote persons that are thinking of planning discussions about determining specific data they support the needy needed another assessment tool is a since the sis is a support driven assessment meaning it focuses on the supports needed by persons to live it every day life integrated into the community the sis promotes person centered rather than programs that are thinking it emphasizes exploring the full range of typical life activities and continuing to sis has a strong presence lation to plan writing is very helpful to discussions of person center goals and the development of natural supports in some the  one's a person's deficits while the sis focuses on the supports need about persons to achieve a full life in the community that's what the orders do you consider order i mean the community please in the remedial order the two thousand and six settle agreement that was the focus well i mean but the question is how did some of this work that you did with respect to the content motion which frankly has nothing to do with what you just read i mean in terms of you weren't arguing her new measuring tool a lot of the work had nothing to do with a new measuring tool that's fair isn't a lot of the the time records that are in this went fine there is granted i noticed in your argument that some of your work related to this tool and you can point to you know we did discovery we did that time records that my question is there seems to be a lot of work relative to the content motion compensated by the district court which doesn't relate to subsidies to the to the tool etc and my question i just want to be candid with you about my concern my question is five days of hearings in the district court as to all the problems that were that were created by the state of tennessee when in two thousand and seven there you now is to unilateral reduction and rates and so forth and so on and so the work contributed to and i would also the work contributed to the results obtained which was moving to a new assessment tool which was addressing the state's reduction of housing subsidies which was addressing the state's failure to create a housing policy which by the way they did on the eve of the content for seeding and so they it this is a system reform case and haddocks versus johnson is precisely on point and it is i agree controlling authority it was a institutional reform case this is an institutional and system reform case where everything that was done including this litigation is organic the litigation to get it what happens in one place affects what happens in other places and this everything i mean i guess my question does everything you know fact it is everything necessary i mean if so then what you're prepared for prevailing party and you get some additional more down the road you get paid for everything which i don't think that's the law that moves us to the lodestar analysis your honor that's where the inquiry is how much how much of once you determine that under been to be that there that the work had value then you move to the lodestar calculation which was not disturbed by bent to be and there should be no reduction in the award because the he found is a matter of fact that the work contributed full value but but so so the analysis that your honor focusing on is the portion of the lodestar calculation where you determine how much of the time actually contributed to the result i get yeah i mean i guess that's one way of looking at it how much of this work was necessary to enforce the prior war how much of this work resulted in a subsequent order that secured the initial success i guess i'm just mccullough has determined that the work was necessary directly related to the original proceeding in this matter and then he goes on to say both class member housing and service assessments were issuing people first motion for contempt the parties reached agreement on these issues and as a twenty one six zero three the court sanction these changes to its consent orders and people first efforts resulted in improved housing and assessment services for class members then judgment call it goes on to say the consent orders that resulted from the temper seatings did not address all the issues presented b people first its content motions the orders how resulted in significant benefits to the class members for these reasons the court declines to reduce the load storm out here but i'm understanding you correctly your basic point is that and to be doesn't really have a causation requirement it just hasn't related to require that there it doesn't have a causation requirement that a in the sense that i believe this court is asking about what would bend but bent to be the again the overarching teaching of been to be believed is set out  where the court first identifies the test before it page six twenty one of the published opinion where the court says do they have to provide the term and this is established again that they are prevailing party or alternatively only be required to show that work was otherwise compensable because it was in some way spent defending the earlier work that's a painting is on page six twenty five and whether we call original decree and we submit that these orders did secure the plane as an initial success which was to create a vibrant community system for persons in the institution and moving out of the institution well i mean that that's limited less isn't that the let you just said would be limitless and goes back to judge kepler does point that once you prevail on the merits additionally tha anything that you do is going to be compatible that the law isn't it nor was that what i intended to say your honor if i said that i apologize i was looking for the limitation on what you said the limitation continues to be  the limitation continues to be understood to be whether the work was necessary to enforce the decree let's suppose hypothetically that we had filed that the state had made all these policy changes we hadn't done all the due diligence to to meet with class members and parents and so forth to it is very difficult for me to create and recreate in this chambers the chaos that ensued from what happened in the system from what happened in two thousand and eight but let's assume that we had simply filed some transit motion asking that mr kirk be required to wear green ties in this case well no that wouldn't be necessary that wouldn't be necessary and act to enforce the prior consent decree and it would have no bearing on what was a read on the relief originally obtained but i don't believe that one can characterize the contempt for seating as that type of action but i mean honor no well not related you know kind of research designed to make sure that you get the same kind of relief that you've been seeking all along it would be had we come forward on the basis of that research and done something affirmative in the case that you're having affirmative let's say in the court threw it out if we had brought an unsuccessful motion that had nothing to do with the original decree then i would say that we would not be entitled the class can say nothing to do that's a little bit ambiguous i mean it has something to do with it seeking the same kind of relief in your original argument that was unsuccessful is that it's required by something under the to come up with and a limit that will never happen is another way of saying it's unlimited so that's why i'm trying to come up with some kind of hypothetical like analogous to things i see when i'm review vouchers for lawyers fees you know sometimes they do things that are just ok let's look into this and then they charge for it you know and that's and if that's included within your interpretation of meant to be that's a much broader interpretation than something which leads to a successful result what you're saying is not the the standard leads to something which either keeps the original decree from being lessened or adds to the relief that the initial decree provided i thought that was the the the strict causation of additional relief test that you're rejecting that you're saying but to be does not require requirement a bit to be that results in the subsequent order that at the very least secures please its initial success the research to which your honor referred would not do that would not do that would not do how is that any different say from a whole bunch of contempt allegations that went nowhere really that that just sort of there was no judicial action ever in response them other than yeah there were a couple of orders later but they really had nothing to do with these two allegations specifically why isn't that like you know a dead end research project because it didn't go to where it resulted not only had two orders but it also resulted in the question you know kind of what we're struggling with there there are a lot of allegations in the contempt motion that on their face just don't have any connection with an assessment tool or with housing subsidies something i mean i understand some of your allegations too but a lot of them have nothing to do with that but the result the result under bid to be is a subsequent order that secure the plane his initial success in about a day and how do we know that that additional we're not doing this in gross let me put it that way ok you've got a lot of contempt work we're not determining in gross necessarily whether that led to the orders we have to say well you know what about all this area here that doesn't seem to have a connection with that specific release how did that result and really that seems unrelated that's what we're struggling with and i may be is your answer simply that the contempt motion as a whole was a hammer that brought them to the table and somehow two years later the result was the or these orders is that a fair characterization of your argument partially ok i mean one of my missing the the and i didn't mean to be no not at all no i mean we're trying to you know understand so the contempt for the contempt or proceedings was directed at a number of different things and the state of tennessee made changes well it can to close it was proceeding minutes needed such a cannon's a problem for you on that theory i don't believe so you're on a mass speak to that my time is up  but cannon but it's first of all mccann it was a prevailing party analysis and i think it is risky to transport prevailing party analysis into the second phase in the second part of th test but buckhannon merely said that it yes it did away with the catalyst theory that had that had heretofore been a bit excepted but it is subsequent courts are recognised number one it did it in a pretty litigation context and number two it did not do it in an institutional reform case where there has been where there has been a relationship between counsel and the state to try to build a system benefits from a class that's a different answer then these two orders port the war that's not a reason why those two orders point toward it's just a different it's a different reason altogether so well you to show a connection between this work and these two warders because the class otherwise benefit apart from those two orders from the work is that is that what you're arguing that's part of it your honor but  risk in the in the bent to be case of a subsequent order is precisely what happened here that is which the defendants can game the system mr kerr correctly pointed out that there's nothing in either of these orders that ties them directly to the consent proceeding but that's not because we didn't try the record reflects that we submitted language that the state of tennessee rejected and then we had a hard choice do we issue the release because the state won't put the language in the order i think not i think we have an obligation as class counsel to proceed to to obtain the relief and so i think it's we need to be very careful in terms of policy you know if you should the relief he would get the attorneys fees either i'm sorry i don't see how assuring the relief would cause you to gain the attorneys no they wouldn't we would we would we would violate our duties to the class we have violated our duties to the court who appointed us as class coun and we would and that's a real that's a real tension and a lot of circumstances where the issue of the attorney fees and really fun to merits because one big rubberband all right and it's very difficult for council in your position of work to work that out and i write about that it is difficult for us to insist the certain language be put in an order when the response is no we're not going to put it in the order in the course the result would be you don't get the relief no i mean oh yeah yeah i know that's true but i mean the answer it seem to this problem is the district court at the end of the day is going to make its own determination whether your work leads to certain relief and just because you know it's not going to depend on them consenting to some language that says that the district court's going to make up its own mind and judgment call it was in the was in the of course the correct position to do that in just mccullough made that determination as i have said to the court several times over he made a determination that the work had value and that it contributed to the to the benefits that the class received and in doing so he did not reduce the lodestar calculation made the result addition and i one more question  t give you a chance to respond to counsel's argument regarding kentucky versus graham i don't know if you heard that citation for the first time if you did that's fine i i did ok are and i would i mean if i if i can with her leave  presiding judge it's an important point you didn't know about it coming and if you'd like to submit a you know a couple page letter in response in your view i mean i understand the argument is that kentucky graham i don't know i haven't the fact here i don't remember exactly a state not legally responsible that's right he has to be extracted from the state in order for you to be able to get these under section one hundred eighty eight i believe  ok you want to read case in just give us your view about it but let me let me not step down if i may have just one second to respond judge rogers yes the state was required to undertake certain things in these orders the we did this we did get obtain in that sense relief from the state the state was required to implement assist the order is very clear as to what the state's obligations are there to help you would submit that your approach to analyzing what's before you in terms of what were the allegations in the contempt motion is exactly correct and i would start your review that on pages two and three of the district court's opinion under review where judge mccullough listed the six major issues that were at issue in the contempt motion and you'll see that there were things like complaints about the reduction in provider reimbursement and eligibility requirements all things that had absolutely nothing to do with housing or the two so the six major issues plainly do not satisfy been to be because even if they had shown that those were necessary to enforce the agreement completing the underlying relief complaining about those issues there's no subsequent order so what you're left with are the two complaints that you started out with with in questioning me your honor the housing and the change michel that point specifically let me just ask you i mean as mr schwartz rare i mean the district court did say that all this work was related to the original decree and i forget the exact language but essentially resulted in significant benefits which presumably one could relate back to the remedial or for the class  me go to exactly what judge mcconnell said he did not say that all this work was related back to original relief he never said that at all he did say that the orders provided significant benefits in the form of the housing subsidy and the change in the system will change to the system all but providing significant benefits to the class isn't enough then to be was very clear about that you to meet that clear test in terms of whether he found that the the were the work related to all of the allegations in the content decree he squarely the the relief orders and he simply refused to reduce the lodestar to account for that what about the idea that i don't know if this is i remember he said this but the idea that you know this contempt motion was just a big hammer that related specifically to the later orders or not that was a hammer that drove negotiations which in turn results in those two orders he said there was he didn't say it was a big hammer he did say he thought there was some relation and i would submit that that's clearly erroneous there is nothing in this record that supports the proposition that the one thing led to the other what is in this record directly refutes it the fact that the order say nothing at all about the contempt motions the fact that the orders did not release the state from the contempt motions such that they were not resolved and because they'd been dismissed without prejudice they could have been brought back the next day if the state entered these agreed orders solely to get out from underneath the contempt motions surely it would have insisted that those motions be resolved with prejudice in this order and we did not you given the fact that been to the titans the acuity of the analysis needed to be done by the district judge i appreciate the fact that your assertion that there's no questions of fact here but given the fact that the acuity analysis based on the p has got to be a lot tighter than in previous cases why should we send this back to judge mccullough to give him another opportunity to apply been to beat this particular situation my best answer that your honor besides the absence of factual questions is the fact that that's not what going to be did been to be actually applied the test to the record that was before the cork  to briefly touch on my backup argument because it is important judge catholic your question started to go to that if the court decides not to reverse on any of the grounds the four grounds i got that they haven't shown it was necessary to enforce the order didn't result from the work done the kentucky versus graham order which by the way is briefed on pages thirty two and thirty three of our are brief that the relief was not directed against the state so the only thing you hear is we did cite the case this morning that wasn't cited in our brief and number four the second requirement of punk to have been to be is that the relief must be in the order must be at least secure the original relief received here there is they've not shown any original provision of any of the remedial orders in twenty years of this litigation that in any way went to the housing foundation or the system but i mean is that too demanding now a level of generality or specificity i mean do we have to to look for the words you know housing in the remedial order something or t in order to say that yeah these later orders did in some significant sense secure the initial success i think you did judge carefully each certainly need more than it was a benefit to the class and these two orders this pacific benefits in those orders arguably fall within that level of generality and now we have to defer to the district court i mean there's obviously a spectrum here benefit the plaintiffs isn't good enough and i would say it doesn't have to be you know provide rental assistance in this particular manner i would accept some level of generality but here they pointed to nothing they pointed to nothing  i would respectfully request that you reverse on any of the four grounds we've given if you think there's still something to be done remain and i would respectfully request that you remain instructions make it clear that only work done on the tool and on the housing is compensable because the fact the matter is the state's taxpayers will get ninety five percent of the benefit of this if it's limited to those issues because most of the work was done on all these other issues