court under possibly the highest legal standard known to law and following the grant of that injunction the defendants and did all of the elections that were the subject of the filing of the plaintiff's complaint in  that's just a principle that would seems to me due to some extent your claim here is if we were to hold that and order of the sort that you're relying on here had to unambiguous lee communicate that it was in fact on the merits because i don't think you can tease that out from the four corners of the order we have before here and that is probably why we're all here on appeal is it the order it's so so we have only just finished my question so why shouldn't we adopt the bright line rule that just says with this sort of i don't know what you want to call it a state put injunction whatever label you want to attach to it but in this posture a less the order itself unambiguous lee states that it is on the merits then we're not going to have to read that into it why shouldn't we adopt the principle because i think most other circuits have well your honor i believe that this or its precedents don't support that reading but the reason not to do it is the reason why we have fish shifting statutes and all we want people to act as private attorneys general and in this case there was a race a viewpoint restricted election and the value of having that sort of fee shifting statute is based on that but in terms of why we shouldn't adopt the an ambiguous standard used in other circuits in in this circuit the case that is most on point is the watson case in watson there was a an injunction under the sliding scale standard at the district court in other words the merits were as weak as they could be there were serious questions going to the merits the case was subsequently mooted i think that was in that case though don't didn't we have some indication from the district court that it was in fact evaluating the plaintiffs likelihood of success on the merits there was written text as to court that i think the plaintiffs are likely to succeed or there's something about the merits of the claims that hold weight were asked this kind of order is completely silent as to that and i don't i am frankly if you can take another run and i don't see why we shouldn't adopt the rule that the other circuits have because it seems to me you have to read a lot into this particular order to assume that in fact the supreme court agreed with the legal propositions you were you were advocating your honor i don't think if we look at the case pretty easy way to read the context here as involving the supreme court just saying listen just hold everything the election can proceed everything can go forward as planned except just don't count the votes don't declare any winners just yet because we want the th circuit to finish its merits review of the on the player injunction appeal we're not communicating anything about who's likely to win who's likely to lose we're just saying pause everything and we'll let the circuit sort it out that's how i guess if i had to guess as to what was in the minds of of our supreme court colleagues i would assume that's what they were thinking not that they had made some merits based determination that you that your clients were like you are likely to succeed necessarily and so that's why i'm saying in this posture i would be inclined to say i'm not going to just assume as you would like us to that in fact they have deliberated about the merits and issued some pronouncement on that i would assume the opposite unless they they tell us important to have some formalistic definition of what is a status quo injunction or where the status quo is and a look at what happened here this injunction both the justice kennedy's injunction and the supreme court's injunction occurred when there was voting left to happen those injunction he was allowed to continue that's my point yes your honor but are they status quo injunctions i think the status quo is terribly interrupted people know that if they cast votes in those elections they may never be counted and what the supreme court has  and done versus mcnab which is the twenty eight j case that i sent to the court in the parties in that case the court held that it was an abuse of discretion for a district court not to make a finding on the preliminary injunction standard of likelihood of success let's assume that when a part of the already let's assume argue wendell in your response to my colleague that that we could somehow characterize what the supreme court did here is at least a merits based decision count the votes basically the whole thing just disappeared gradually but it disappeared because of i assume the actions of the united states supreme court doesn't that fit exactly into what i can i was talking about no your honor it does ok why not the reason is that the buchanan type of care where the defendant alters their behavior based on the fact that the complaint was filed at all let me just as a result this is a result of the complaint that was filed and it went very quickly they were as i understand it literally in the process of voting that before coming to a convention or something like that and because of this action by the supreme court initially justice kennedy and then the whole court they basically folded the tent and did all the other things that you've adequately described in your brief but isn't that a direct result of what happened at the supreme court on the words it was a catalyst it moved them to do these things is not a correct view of it with all respect your honor no ok if that were true if the theory your honor was expounding were true then her taste would have been decided well that's what we're wondering about well only it's the literal filing of a complaint and that alone is what causes it in order to qualify under by canada what you're saying well your honor whether that hypothetical case is true or not in this case they directly refer to what the supreme court did in all their press releases they said given the fact that it has done this we're going to stop this case now they didn't say it's because we believe that in fact the plaintiff's case has merit and we wish we'd never done this he didn't say that you never say that but exactly the reality is they this regret did decided on the merits it was like my colleague described where they simply were saying like like just just think that there are don't count anything let's go let's go forward from there and but they took the action that the supreme court had undertaken as a sign that this was the end they were going to do anymore they were going to be successful in their quest well you're out of that's the same as it was in watts i mean that's the that's the same as was in williams versus alioto where an injunction is issued and actions are taken on account of that injunction there's no mind reading necessary here when there was they stated why they took these actions where that's the case it's on account of the judicial action and if the case is subsequently mooted of course you're never going to find out how the case would have turned out what the judgment would have been on the merits but you still are deemed to prevailing party under higher taste williams and watson and your honor it's important to note in this case of people cause they did issue their injunction in the midst of an ongoing election affectively spoiling that election there's no way to ever know with a week remaining how it could have turned out because they issued their junction like that not only is it not a status quo injunction indicates that they didn't rule on the equities because in those cases there is such a strong case law cited by a police there where you are inspired or you move based to enjoin an ongoing election the equities are all against you lection was not enjoyed though that's where i think you're sort of overstating your case i am your honor what i should have said is interference with an ongoing election that's the i don't even think that's an accurate description right because the election process could have it did in fact  sort of run its course it didn't run it did in the sense that the all the votes that were to be cast were cast they were never counted i grant you that but that's why i say i view the supreme court as just saying just setting aside the  kinds of of sort of equitable harm that would be inflicted by actually counting the votes d announcing the winners and then have the th circuit later declare the whole election i'm awful would be extremely problematic so just  the th circuit presumably to expedite things greatly sort through the legal questions and then we'll know with all respect your honor that's not what happened the supreme court issued its injunction on december's to by that time the pelleas had already extended voting by twenty  that's december to it issued its injunction on december th the appellee is said we're not holding the election and added by the way that now the case is moot which certainly implies that we won but they added that and so there was a week to go in regardless of whether you can read their minds like i'm trying to do was a week to go in the learn to get straight the facts as you obviously know them better than i did i thought that the initial election for the it was at the delegates to the convention that did run its course  ok why why didn't that run its course initial period of people were stopped from voting d it didn't run its course because ultimately on december th the election was cancelled with a week to go it wasn't cancer by the supreme court was cancelled by action of the defendant they said were bending this on december th and they said in their papers to spring court this is the office of white affairs papers on the contempt motion they said because we started in the middle we will never know the results of this is not a matter of counting it one supreme court pending their appeal to the th circuit it's important to note that they did not obtain a single favorable ruling that they were likely to succeed on the merits of their claims nor did they of tain a final judgment on the merits of their cla from jensen some of the bennett that they received it's important to do a comparison of what relief they saw in the complaint and what the supreme court's emergency order stated forgive me as i understand it what they were trying to do was to stop on election i do think they went to the supreme court the supreme court took the action it did and stopped it now you can say well you stopped it order had specifically enjoined counting the ballots cast in the private election and certifying the results of the election pending the final disposition of the th circuit appeal no that did not happen this particular case you took the position i think that it was mooted at that point so there was no need for further litigation but it just all died and i guess that's what i'm struggling with is that there what they were trying to do was to stop the election that was a benefit they wanted it did did stop it n could say well they didn't do it the regular way because they didn't get an injunction before but if the supreme court had not acted in the way that they did you would have gone forward and they would have lost everything why didn't they when some of the benefit respectfully what they  injunctive relief focused specifically on the restrictions and qualifications for the role now the role was used to determine eligible voters and as a requirement for that role people had to  declarations that that is the heart of their complaint and their relief that they saw if we look at what happened after the emergency order not your point he continued to use the role eligible voters from the local continue to cast their votes which was to stop your action if they didn't get a b and c but they stopped the election had the result of stopping the election my getting the supreme court to act is that enough to show that they got in quote some of the benefit under johnson no it is not why i think there's a conflation of what the relief sought in the complaint and what the lawsuit was about not you appointees goal was to facilitate and help a path toward self determination or self governance efforts for native hawaiians that did not limit that was not limited to just an election that included the election was a means to get delegates to an aha or a convening where then those delicates could work on drafting a governing document and that happened what do your clients retain the goal can go forward in some future way as a result of what happened in this particular election what did they gain they have a governing document they were able to bring together people who who could discuss organize and propose a path for needed points of governance they have the use of a role which can still be used and that's what was challenge and moreover with regard to any future election supreme court or any court is it or provide any money to help do any of this yes your honor the state did through ohio provide state monies but at the preliminary injunction hearing plaintiffs conceded that that was not enough to find state action binds us no but that's not an issue before this court for this particular if there were all that there weren't public actors then all of this is just hurt anybody because a private party can do whatever they want to question is whether you're a public actor you're saying that action by the trial court was enough to solve that question is that right that's correct your honor and ok you have other questions all right let's hear from the nd for all of you speaking i'm excited provision of ceded lands trust fund revenue to not putting in support of an election a convention or and a ratification of governing documents possibly is important the money control if without the money provided by all ha well could them gone far and i mean realistically where they have had the resources to move forward with the election in the st place your honor respectfully stated you know the determination of whether or not there is state action is not an issue before this court all this to me because if this is not state action then i don't even know why we're here i agree with you your honor you stipulate that rights we have a clear holding from the united states district court here by judge seabright ruling that there was no state action and that binds us right yes your honor that's the case if the right is correct and i  and the moving party in the district court is not entitled to their fees and costs because this is a private was a private alexion there was no state action more importantly your honor asked asked opposing counsel abo wofford said was merely it was merely a status quo order to preserve the status quo in life but was not the whole point of that that it was unclear whether this was a state actor and not if they just said this is a homeowner association the court would have never even touched it with it it would provide a status quo decision here your honor there was no determination by the united states supreme court about whether or not there was state action there was merely an identification by the supreme court that there may be constitutional rights issue there with respect the only way there would have been constitutional issues is if there were state action right correct but there was no finding of stay on this front court as my colleague has pointed out that might have been dismissed maybe so but they didn't do that and the standard though is under higher taste is whether or not there is any judicial impropriety in prior tour in order to in order to merit is the decision basically and they said hold up hold up there is arguably that's a judicial improviser i guess what i'm struggling with this is if this is a homeowner's association we got no case on their part nothing zero on the other hand if there is some basis for it for a state action you got money from the state then you've got a big problem potentially right but then surely and that's why the united states supreme court your honor sent it back down to this court in order for a determination on the merits about whether or not the district court in honolulu accurately found that there was no state action but then you said it's moot it's over we're not doing anything further  will importantly your honor yes your honor that action was deemed moot but importantly when that when that decision was when that injunction was entered by the supreme court it only only prevented the counting of ballots and certifying winners to an election it did not cancel the election year i understand that but you got it nonetheless when it came back you said this whole thing is moot nothing to talk about nothing to see here right your honor it was only moot because because purposely cancel the election right which was challenge your honor the appellant's filed a motion for contempt saying look you violated the u s supreme court's order right the court high court said there was no violation for  collectively i will refer to my clients as the state defendants and the state defendants agree with not you puny and the defendants on the question of whether plaintiffs are a prevailing party it's our position that they are not a prevailing party i do want to address some additional arguments that state defendants have first of all your honor even if this court rules in favor of plaintiffs on the for prevailing party issue there are serious procedural problems with this case plaintiff's attorney says his motion was procedurally defective the supreme court order in this case of that plane just rely on its essentially an injunction pending appeal and because of that the plaintiffs should have filed their attorneys fees motion in this court in the th circuit after the st night circuit appeal based on circuit rule thirty nine dash one  the st decision in this case came out august th two thousand and sixteen they had twenty eight days to file their fees motion in this court they did not do that they also did not ask for permission to rehearing and then fourteen additional days to file them the fees motion and they didn't do either they should have done it in this court because as i mentioned what they essentially attained from the supreme court was the sta appeal this was pending the th circuit appeal the th circuit appeal was pending at that your position is even if they got what they pretend that they got or say that they got because they didn't fall the timing of our rule them favor of affirming the district court i do realize that this court might want to address the stay put status quo order issue because that that is unsettled in the th circuit a large number of course of appeals have in fact ruled on that issue and this would be an opportunity for the court to clarify th circuit law on that but if this court wants to affirm on some of the grounds this court can and i would argue that regardless of what the court does on the stay put order this court can also find that the this is the plaintiff's motion was procedurally defective and affirm the district court but on alternate grounds now in order plaintiffs in their reply brief they rely on a case called  the case had to be remanded back to the district court to determine the prevailing party and this case is different because there prevailing party argument is based on one the supreme court's order and to the modus of the election issue both of those issues were resolved in the th circuit so they could have and they should have filed their motion in the th circuit they didn't do so i thought that we would want parties to file motions for attorney's fees in the st instance in our court only when they were seeking fees you know on appeal on here though the point of so i thought were speaking fees for all of the work they had done on the entire case which would obviously involve a lot of proceedings this record i just believe for myself i don't want to be bothered with motions that seek a bunch of fees that people incur in the district or i would have no way of sorting through how to rule on that so why would we want for efficiency's sake when somebody seeking fees for the entire rules they had to ask and because they never asked not aware of any rule that requires a party to seek to file a motion for attorney's fees in our court to recover fees that they incurred in the district or pursues are you saying that well your honor they're asking for any rule that says again when a party is seeking fees for the entire case that they must st file the motion in our court you're right in this case as my colleagues have mentioned the defense prevailed at every other step the really really the only success that they had was the supreme court's order and that occurred on appeal so because this case because of the unusual posture of this case i think it would have been appropriate and in fact based on the circuit rules they in the complaint in paragraph page thirty two dollars paragraph three of the per for relief we asked for preliminary and permanent relief in joining the use of the role and the calling holding or certifying of any election so we did obtain substantial significant at least significant relief and speaking from a practical point of view they plan to hold an election for delegates a convention a ratification vote they only had a convention and those weren't elected delegates and your honor don't lose sight of the fact that because they were not elected this case cannot be used to satisfy the department of the interior's regulations to allow it to administratively declare what would effectively be a tribe or a native case but if they're not state actors if they're the quantised club then there was no reason for the supreme court to issue its injunction and that's sort of just in to it that i mean it is the whole case really talked about illogical that they would have issued an injunction if this was a private election they can do whatever they want the whole point the argument that we have made and that's another point i want to make to your honor's everyone concedes in their papers at the hearing at the district court level was detailed and explored the issues simply and four hundred and twenty six dollars pages of record went up on what was basically an issue of law there were few or no disputes of fact so the supreme court had the time and it also had an injunction in place and twenty one dollars more days it had time to consider this issue carefully under the supreme court precedents say that you abuse your discretion if your district court and you don't argue the merits on an already fact injunction that goes up you need to make that argument if it's a preponderance of the evidence for an injunction and it has to be indisputably clear it's a supreme court level we at least had serious questions going to the merits which was enough for what's remind me what five cases where they said they just talk about the parents in the two cases the only two cases where they don't what they say is here were they comment on the fact that we're not commenting on the merits and in those cases it was about less granted the same kind right so that's why it sort of undercut your position that no matter what the court must always say something about the merits in order to grant this relief so just what did you what was your response your honor we it wasn't that the supreme court couldn't do that although i think there's a decent argument that that decision has been overruled by john vs mcnabb that they would no longer do that regardless or the supreme court if they chose to do it they would probably do it but in that case they sent it back to the part and that's what they said surely you can accommodate the religious exercise under the bill fordable care act without us ruling on this there were seven cases i believe in front of them at the time on this issue that situation is really one situation two cases but that situation was unique and that's why we say when they talk about the merits they just talk about the merits they don't say now we're going to do this in an unusual exercise of our authority all right i think your time is up we thank all the counsel you've done a very nice job each of you can take pride in your action we give you a bad time you know that but that's because we're trying to understand your position try to make it work but we appreciate the facts once of your presentation and your brief thank you all will decide this case in d