will now go back to wimberley the state police union i believe mr young is back with us in a different location your honor thank you thank you judge bianco i'm reminded of judgment minutes on the merits we've spent so much time on the jurisdiction issue but my question you may have answered my question but here he answered my question before you cut off was on the on the merits of the fee issue why where there was no determination on the the simple fact of the matter is that mike my client's claims are extinguished by virtue and there is a stockpile of fact in the court's finding a movement that seems to me because my clients are perceived complete relief and the courts mutinous determination yeah assuming you know assuming the courts correct on the notice issue and it's not necessary because by determining that my client's economic claims were satisfied by the sustain a finding of prevailing farty status under buckhannon one of the points of things occurred to me is the many civil rights cases in which the recovery have been is going to be much less where the and this had nothing to do with janice which was as a decision by the supreme court effectuating a rule to apply in cases as they as they develop with all the details to be worked out indeed the details to believe why were payments made for a period exceeding the statute of limitations i believe it is two years on personal injury actions in the state of connecticut yet these fees that were refunded go back to two thousand and  back to my client's original resignations from union membership if the payments were unilateral why did the why was he interest calculate at the rate we agreed to in the settlement negotiations in front of judge magistrate judge  and forty four but i think what i'm suggesting is i think what you're asking us to hold here is extraordinary what you're saying is any time a person voluntarily pays whatever it is you're seeking in the lawsuit and the case is mooted  the payment you can reopen the case that that somehow turns a prevailing party because the it's a consent decree or something like that it's like if it's like a consent decree judge bianco then it falls  if it is if there's some issue in the future you can reopen the case of the uk turns it into the question of a consent decree that you're not for going party if the judgment of those words would not be the prevailing party but maybe the fine distinction on which this case rises or falls just bianco and as you know that often happens in the law it's important i think however i'm not going to pretend that this just the disposition of the case is not entirely confusing i was entirely confused quite honestly after judge bolton had agreed to adjudicate the amount of fees that he herman that we were not revealing parties that was my understanding in the understanding on which i proceed  in this case particularly on the notion that this was voluntary that it was unilateral it is in defiance of the record it also and to say that this all happened because of judgment if that issue remains open then you are protesting are you not the district court's refusal to grant you a declaratory judgment but that is true judge will it is it is i think an important part of this because the odds are so your contention is that the district court should have granted you a declaratory judgment and the proposition that it was moot was simply wrong because the possibility exists the statute is still on the connecticut books and either because the statute is on the books a future administration could could could change it could change its decision  honor and so if you are not untimely in appealing that as judge walker was saying and you if it is correct that there has not been a judgment entered against you with one hundred and fifty days expiring there after before you write your appeal you still have live the ability to contest that and if we were to rule that you that there was no basis no proper basis for denying you a declar or your prevailing party status that's correct judge will if the this court were to do that that makes it easy and that's all that is easily impression i was under the impression before the argument  that we couldn't do that because there was the on time we had people issue which barred us from considering the issue but if that's not correct if you if the if the district if there was no motion by the defense for s proper entry of summary judgment against you and your motion for summary judgment then the issue of your entitlement to two declaratory relief is not  a court if the court were to determine that we are entitled the court district court erred when it found that the question moot and i could find no decisions which said that the mere representation of bureaucrats or elected officials that they wouldn't they they they wouldn't do it again while the statute remains on the books much the case the district court cited a number of cases where it said supported the proposition that a change in  case but that's a change in the subject law not a change in the supreme court's decision making on the issue which is what we have to deal with in janet's which reversed the boot if this court determined but but as  you're suggesting if this court determines that the district court erred when it refused to award declaratory relief to my clients that makes this case easy when the attorney's fees issue or at least a reversal on the attorney's fees issue automatically it seems to be but even if we don't win that case for that st issue for whatever reason that our repeal was untimely or notwithstanding the harder and we and we respectfully submit that but in a case where damages are claimed were damages are paid and damages or exceed those which would be available if for example we have filed a lawsuit on that would that requires our argument that a finding of mootness is the judicial imprimatur of the judicial sanction to the behavior of the defendants it is it says in essence we don't want to fight about this we're giving you everything you could win in the court and the judges agree a judge bolton agreed that we could receive everything we could we could obtain in finding a move to this says you've gotten everything you're asking for it doesn't say you're entitled to any of that having gotten what you're asking for doesn't doesn't  s said it's moot because i've gotten what i was asking for the judge has not many ways sanctioned my the appropriateness of my getting it right have a good answer for it except to say that this was a case that was litigated fully vigorously by both sides and the attorneys the civil rights attorney obtain full recompense in the costs which are represented by an attorney's fees war are the people who get the brass ring of a supreme court decision i don't believe that the that the very persons with civil rights grievances unquote if the court limit the entitlement to attorneys fees to only those little against who actually win the decision and deny it from public officials who i think wisely say ok we're not going to fight about it anymore because and courts say that the case is moot and then deny the fees then you're going to have less civil rights litigation now us is the motion for attorneys fees and the judgment no denying attorney's fees that's all that's before us because nothing else could have been before us given what the judge did in the in the in the st opinion  and then that's that's the situation and i wonder if you could just address that where that leads us i think it from our standpoint on the use the court is that it has no jurisdiction over the appeal related to the summit just rolling over and it one hundred and fifty day hock and it's point administrative closure is not of this missile the judge didn't use the word i'm dismissing and you didn't at that point time you didn't seek to have him formally dismissed the case so whether or not your party opposing counsel called it a dismissal not we're not bound as you know you know we have to determine whether it's a real dismissal or not and the other thing that we mentioned before it's one highlight is when the judge says  no clear expectation that the plaintiff would be coming back to him and almost two years have gone by and the plaintiffs have never found out so at some point there must be some type of you know latches issue about feeling or two ways really to assert that claim if it still exists and it doesn't exist understood and the only thing that was left open were the attorneys fees and the the actual recovery of the plaintiffs was in conformity with those settlement negotiations without take these payments from them and and the court rules in conformity with the request for declaratory relief that is that that was illegal on the part of the defendants so your honor i think th if there has not been a judgement if there is not been a failure on the part of the plaintiffs to take timely appeal from a judgement against them because there hasn't been a judgement against them and the issue declar would that would be sufficient to make them the prevailing party and and it is premature for us to rule on the argument that you are making that they're not the prevailing party because all they got was voluntary compliance and they didn't get an order of judicial sanctioning of their of their entitle me to  state connecticut with me is my colleague assistant attorney general richard sponsor we represent the state defendants i wish to just take a moment to thank the court for having this by video this conversation would have been much more as your honors there was a final judgment their appeal is untimely their cave and if even it wasn't time timely their case is moot and they are not the prevailing carty under black letter law so let's goes let's take  reversed it overturned a boot intil that ruling under this court's ruling in wholly and the state october's would have been entitled to qualified immunity and the private actors the union people are entitled to a good faith defense and therefore the declaratory judgment was already rendered by the u s supreme court and there was nothing else for the district court to do and you want to say well how do we know the district court knew this was that they had made a final judgment i prefer the court to the district court's ruling in the as attorney steve case in the  case if these decision and particularly j for thirty nine and where the court says listen we deny their summary judgment holding that all of their claims it becomes moot because there was nothing else for the district court to do judgment that was one thing and secondly i think he condition his decision on being able to return to to him before having come back before him on the on the question of  honor let me tell you why because the court in his decision on the motion for summary judgment said after janice has been decided there is nothing left for me to do the supreme court has spoken and as of the dat supreme court's ruling the law of the land has changed immediately there after the state defendants stopped collecting union dues and they fell within a short time period on august  do and two days later the plaintiffs filed for summary judgment there was at that point there was no declaratory ruling because there was nothing the state was doing and nothing that the death the union was doing that would violate the newly minted understanding of the constitutional rights for that presented by janice the medical relief if he meant to permanently in the case want to dismiss the motion without prejudice that would seem to be you know there may be still something i have to do here is going to after the words without prejudice to renew in the of banks that there's an effort to reintroduce to reintroduce agency fees so it i to in addition as noted above planes for the st time now argue that there be an reimbursements have not been properly calculated that issue was not properly before the court so i understand you're saying but problem and if you kc a look at the attorneys fees decision they say listen i know that they plaintiffs never showed up with a problem with respect to their attorneys fees in this case is on all fours to buckhannon new york state federation of taxi drivers aaron brush which is out of the th circuit and mob or sr taught in all of those cases the got there was a change in law there was voluntary compliance and the courts all found that the kid there was nd like this the cases were moved and they are other side was not the prevailing party under the well established language was there was was your honor was a determination by the district court that the case was moot and that there was nothing else this court could do and they repeatedly say that in the decision on the attorneys fees and i will also before i forget your honor you raise the agreement of the parties to stick relation that they were not they so you had initially had asked initially and in argument your honor saying that the state's motion had never been acted on it had been resolved by that it was no need to proceed and the motion to dismiss was solely on the th amendment and so it was that would not unfair that would not have been where this with respect to the most is future attempts by the state to collect the agency for his or to to hold them taken back but it doesn't deal with the question of he's a have already been recovered from the state and to the extent to which they should be repa not merely your honor if you take a look at the whole ian case which is a nd circuit case that deals with exactly the issue of retroactive pavement of unions of different connecticut state union not repay the back tees and  both the the collection of back fees as well by both of state actors and the union actors were determined to be covered by qualified immunity and good faith immunity because they were relying on abood and that the nd abood was the land then the state and the unions were in compliance and so the you have to to evaluate this case on the free janice versus post janice legals status of this case required under janus and that state actors are entitled to qualified immunity and that union actors are entitled to a good face defense and therefore the district court was exactly right with respect to his ruling which was very shortly after janice was decided it was in four months of it that there was nothing left for this court to do the case was to was you know was was moot and therefore it should have been closed and they and there was so i would respectfully submit there was certainly a final judgment they were clearly out of time but if that they're clearly not the prevailing party because otherwise and there's cases all over the country with the exact same issue pending and i would prefer the court to pending cook when zig and young which are cited in our brief as is all of the other cases that were cited including and including not which is part of the  briefing when in say that this is what the district court did below here is not is neither unique nor strange all of the district courts that have are dealing with this issue all across the country are finding that janice mooted arguments and rejected them and the as a matter of fact in the case of and the decision on the attorney ses and moreover your honor there is no settlement agreements the fact that there were not settlement negotiations does case scary gelatin arista case it doesn't even have a prevailing party and perennials it was a case where the case where there was already a court order when the settlement can then and then run roberson somebody stands for the proposition that are products of moments as judicial because at that point the supreme court had spoken there was nothing that the district court it was very clear from what the supreme court said that an overturning over forty years or decades of jurisprudence relying on  it's really going to be two minutes so we've been working hard although i take a look at my picture and i realize i should have cleaned up my office but i know it may be doing it this way i went to college in prince edward county virginia you'll allow that i am not entirely confident in the in public officials compliance with plain supreme court law they close their schools for four years rather than integrate them after brown they were one of the five co defendants in brown the point being that representation is a public officials are not sufficient to move the case public acts are missed kendall cites covert is the reason the state legislature in connecticut act well that doesn't explain the twenty months after janice was of judgment i think we're all confused about the status on that but i would point out that the parties to whom that decision is of benefit the defense this is the or order and decision that the court made on our obviously wouldn't give us much time whether it be being helpful to us or we appreciate all your arguments in reserve decision thank you