well your argument first this morning in case sixteen ten sixty seven murphy versus smith mr b mr chief justice to may please the court when a prisoner wins a civil rights case and he's awarded damages and he's awarded attorney's fees the prisoner himself has to pay part of the fees out of the damages judgment statute issue in this case specifies the size of the prisoner share this is what the statute says a portion of the judgment not to exceed twenty five percent should be applied to satisfy the amount of attorney's fees in the twenty plus years since the statute was in acted virtually all the district courts have interpreted it literally they identify an appropriate portion of the judgment not exceeding twenty five percent and they deduct that amount from the attorney for you ward payable by the defendant in our case the seventh circuit read the statute differently to mean that attorneys fees must be taken out of the damages first up to twenty five percent of the damages so that the defendant is only liable for any fees left over but the statute does not say that all it says is that the portion of the judgment is that a portion of the judgment no greater than twenty five percent must be allocated to fees respondents mistakenly suggest that congress's use of the word satisfy indicates that the plaintiff has to pay the largest possible share of the fees you know all cases but that can't be right because the statute itself says what share the plaintiff house to pass a portion of the judgment not exceeding twenty five percent the rest of the attorneys for your ward in excess of the plaintiff share is paid by the defendant up to the statutory cap of one hundred fifty percent of the damages there's nothing in the step your  points to a number of statutes that use the verb to satisfy or against not the for the proposition to satisfy two preferred the complete fulfillment of an obligation how do you distinguish those examples the word satisfy often means the complete fulfillment of an obligation but in this statute it can't mean that because the statute makes clear that the plaintiff doesn't have to completely fulfill the obligation to pay attorney's fees twenty five percent or less of the judgment well but you start with emotion of satisfaction in other words satisfying you did i mean if you know somebody one hundred dollars and you give them fifty that person isn't going to say well you've satisfied your obligation you know that's right and so the the  word satisfy standing alone sometimes often does mean complete payment but that would make nonsense of the text of this statute the text of the statute makes clear that the plaintiff doesn't have to pay the attorneys no no i understand point but i'm just suggesting that that's not certainly a total response yes you have to satisfy it but is justice kennedy just suggested there's also a cap and if the reason you can't satisfy it is because of the cap well that's just where the statute has balanced the two obligations but the initial obligation is to satisfy the fees well you know there was a provision like that in some of the precursor bills right but this that sentence was twenty five percent of the judgment but as the statute was working its way through congress congress rejected that provision and congress kept the provision that appears in the statute that appears in the statute which says know so that that a penny that linguistic structure is common in statutes and here quite sensible it's common for example in statutes that require district courts to impose fines those are worded in a very similar way it's they say or they often say the defendant shall be fined an amount not exceeding x and so the district court shall impose a fine has to impose a fine there's a cap of x but no floor and so the district court has  discretion to impose nominal fines and in fact nominal fines are not at all unusual so it's a common linguistic structure for a statute here it's quite sensible the alternative would have been to say that it's up to the district court whether to make the plaintiff pay any share and while we don't have any direct evidence of congress's intent here because the legislative history is so sparse it would have been reasonable for congress to worry that if it was optional with the district judges many district what do you think i know in your brief you seem to suggest that the purpose for giving district court judge's discretion was to ensure that the district courts could balance the fault of the bear where we were she was not at all right exactly no we certainly agree it would be too strong to say that there's direct evidence that congress intended any sort of fault based system in the statute because all we the only evidence we have congress is intent here is the words of the statute the words allow a district court to to go from twenty five percent down and in the twenty plus years of the statute has existed with district court have have implemented that statute by focusing on the defendant's culpability let the adults in the you don't think that it's it would be odd to say i mean this is this line which can be read either way and it's very difficult but you don't think it would be odd to say that the that the plaintiff has to pay a nominal amount a dollar to satisfy the amount of attorney's fees how can that be satisfaction of attorney plaintiff's share is never going to literally satisfy the attorney for your ward in the region the reason i say that is that the typical judgment and prisoner cases is very very small i mean it's an extraordinarily rare case in which even the maximum twenty five percent would literally satisfy you but you could say that the feed that the the award has to satisfy the attorneys fees up to the cap there wouldn't be anything odd about that it just seems that the you don't think that that's an odd use of the term satisfy you psychosis was a teacher said to the parent your your child can't can't function at school because the child is hungry would you give the child a portion of food for breakfast to satisfy the child's hunger you would say well you know if i give the child a tiny a crumb that would satisfy the right quick but but satisfy is often used in other contexts where it's clear that there won't be complete satisfaction of the relevant obligations so the in ordinary speech for example the example we gave in our brief is to say that credits from a math class can be applied to satisfy the requirements of a chemistry major they're not going to satisfy all the requirements of a chemistry major they're going to go some way toward satisfying the requirements of a chemistry major  bottom the district courts have actually been implementing the statute in a sensible way the district courts have been in deciding on the appropriate share for the plaintiff to pay the district courts have been considering the extent to which  making the defendant pay a greater share will deter future misconduct by prison guards and the extent to which making the plaintiff pay a greater share will deter prisoners with meritorious claims from some  have been some cases there's cases where the plaintiff share is nominal like a dollar there's also plenty of cases where the plaintiff shares the full twenty five percent now i'll tell you what the pattern of cases is like over the past twenty years if the really egre cases where you get on board nominal pain of being paid only to pay a nominal share when i say egregious cases i mean cases where say a prisoner is brutally raped by a prison guard or where a prisoner is permanently maimed or disfigured by a prison guard and so there's enough cases out there where you know once you see the facts of the case you can get a pretty good sense of where this is going to be a full twenty five percent case or whether it's going to be something  write if you want to if you were congress and wanted to get their version of the bill in one sentence how would you have for it we actually know that because the precursor bill that twelve where we don't have to speculate about could have written and in fact nearly did write that would have adopted the respondents position if the award of attorney's fees is greater than twenty five percent of the judgment the excess should be paid by the defendant that would have been it that would have adopted respondents the statute but that sentence got deleted from the final legislation you say that the one way that the discretion of the district court would be guided would be by the seriousness of the offen and you gave a couple of examples i think it's pretty unusual to compensate for seriousness of the defense for bad faith against of the of the defendant through the manipulating the attorneys we wouldn't normally in those cases in a higher award of damages it is unusual and that's because as far as we know this statute is the only one of its kind as far as we know this is the only statute in which congress has explicitly apportion responsibility for eternal but apportionment doesn't mean that the egregiousness of the conduct should be taken into account in fixing the size of the attorneys oh that's right but that just doesn't follow the question if that if the question is why is it that we see the consideration of egregiousness with this statute but not with other fish if the statutes what i'm trying to say is this is so far as we know the only three shifting statute in which responsibility for attorneys fees is apportioned between but then in order to soften the blow he reduces the amount of attorney's fees this right is this is that a double exercise of discretion in those things to make it quite puzzling well but that's sort of could you could you explain to me why the sentence you read would do the trick it says what what must be done if you word of attorney's fees is greater than twenty five percent but one of the award of the tourney sees is let's say twenty percent how does that tell the court who pays the twenty percent ok so the sentence again if you warn of attorneys fees is greater than twenty five percent the excess will be paid by the defendant if the order of attorney's fees is the last in twenty five years less than twenty five percent of a judgment then the defendant wouldn't have to pay anything under that statute but but view of the statue as an act it is that defendants only have to pay to the attorney's fees to the extent the fees exceed twenty five percent of the judgment right that that is what this sentence sat was and that's the sentence that was rejected by congress as then can i ask mr boehner in various kinds of ways this statute tries to reduce district courts discretion over fees i mean if you take as the baseline one nine hundred eighty eight which gives a court discretion over everything this is that you tried to pull back on that in various ways but you are saying that in this particular way when it comes to allocation we should understand congress to have left the courts with the full discretion that you can imagine so why should we read it that way given that in various other way is the clear him of congress was to reduce the court's discretion i don't i don't know that that's an act i don't think that's an accurate description of the aim of congress certainly the statute compresses the range of possible feel that the fees are kept at  hundred fifty percent of the judge and that's so that's a sharp compression of the range of possible awards but within that range congress preserve virtually all of the district courts discretion under section one thousand nine hundred eight because all of the limitations india statute are all expressed in terms of reasonableness proportion now of the and so on and so that this this is the particular provision that issue in our case is just like that it operates within a facilitate the consideration of the stronger ones this provision has nothing to do with frivolous lawsuits this provision only applies when a prisoner has prevailed on the merits been awarded damages and been awar based on the nature of the claim that is more supportive of your procedure that's good and that's exactly how the district courts have been applying this statute for more than twenty years now with this it's a little different i understood the objective of congress in order to weed out non material meritorious suits to be to replicate to the extent they could the the situation of private parties outside of prison there if you have a serious injury you quite often can go to a lawyer who would charge you a contingent fee say twenty five percent and whatever your recovery you know you would owe him twenty five percent of the of the judgment and you wouldn't know him only two percent just because the the judge in the case thought well you didn't do enough work or you could've done better yeah that's that's simply an incorrect view of the statute to say that congress intended to replicate anything close to a contingen yeah but you can determine that if you're on the street contingent basis that that i mean you have to have it in an incentive to get lawyers to take the cases and at the same time discourage prisoners from saying you know pay some share of the attorney's fees how large is that share a portion of the judgment not exceeding twenty five percent i mean it's not it's it's the congress could i don't say that the plaintiff has to pay some share of the attorney's fees don't sound an awful lot like a contingent fee arrangement except that it would be an unusual contingency arrangement that would range from from twenty five percent down to nominal which is why i say is that i don't doubt your position is accurate i mean you are the one who's saying it's from twenty five percent down to nothing what i'm suggesting is as i think it is in the contingent fee situation the lawyer gets his cut before before the plaintiff is paid for it but that's why i'm saying that what congress did in this statute doesn't even closely argument doesn't make any sense because if you read the statute the way i do it doesn't make any sense look the the interpretation that respondents favor was in the precursor bill that got taken out what we're left with is a catch a ceiling but but no floor we're left with not exceeding twenty five percent of the language but but the depends i guess a lot on the background that this is being passed against and as i've read this is the background i would tend to agree with what the background is but i'm not sure what the evidence is this the backgrounds nine hundred eighty eight right now you say that excite you you would agree with me on th what's the basis for it i have to see one thing to the base because if it's a nine hundred eighty eight is the background the normally the prevailing party in an appropriate case gets all the fee he doesn't have to pay a dime right ok so we're if but now it's  important are we operating against that as background or something as more general which is that which was the chief justice is question the and your only answer you've given so far as is well look at read the language i'm going to i'm not sure about the language i exercise of its discussion we're in the any where is that said is that discussed is that indicated in the in this section bill sure your honor we get that from a variety of sources the statutes text congress said that the district court shall apply a portion of the judgment to saturday but i just ask you something about the statute let's assume the statute read without the parent that what it said a portion of the judgment shall be applied to satisfy the amount of attorney's fees awarded against a defendant would that mean twenty five percent absent a twenty five percent  a portion of the judge so it doesn't say all of the judgment and so doesn't say the judgment shall be applied to satisfy the amount of attorney's fees and all it said is a portion of the judgment shall be applied to satisfy the amount of attorney's fees against the defendant do you think in that standing alone the district court would have discretion to give a dollar no your honor no it's a portion of the we just say a portion of the judgment twenty five percent shall be applied to satisfy the amount your honor the not to exceed twenty five percent language in there no that's i'm asking you what's the difference between the two things the difference between the two things is that it in the states it is written and congress recognized that there will be circumstances in which the entire fear ward will be satisfied by western twenty five percent in the hypothetical without that parent fetter call it provides that a portion will be used but for the purpose of satisfying or for feeling i'm sorry your view let's assume it's highly unlikely but it c the defendant pays nothing in that circumstance that's right all right so what is the difference by congress saying a portion of the judgment not to exceed twenty five percent why didn't just say a sufficient to fulfill the fear ward if there's a one hundred thousand dollars judgment and a seven hundred thousand dollar for you ward seventeen percent of the judgment will fulfill that fear ward that's why congress didn't say abortion then you're doing away with the shall apply no one ever speaks of that shall apply as meaning that you give more than twenty five percent we don't know warrant him attorney's fees of twenty five percent of the judgment they do not a portion of this statute does not a portion of the apportionment of more than twenty five percent of the judgment to fees but there are circumstances in which the feel ward is twenty five percent or less than the judgment and we cite that was in footnote two of our you're correct your honor that the state you're probably from the award from the war the statute says that no more than twenty five percent but twenty five percent or less if necessary to fulfill in other words to satisfy the  well your honor the reason they use not to exceed is that there are cases where the plaintiff won't pay twenty five percent for instance where the few ward is equal to seventeen percent of the judgement so in that circumstance  fulfilled are satisfied with less than twenty five percent of the judges mr lowder you put a lot of emphasis on the word satisfy and i think in most cases you're right as to what satisfy means because the question i have is whether in this context one should think that the word satisfies as anything in my question goes basically that in many cases and probably in the vast majority of cases no part of the judgment including the full judgement could possibly satisfy the fia ward so given that we're talking about a circumstance in which in the vast majority of cases the fia warrant is not going to be satisfied why should we understand the word satisfying in the way that you think we should justice kagan because under our interpretation there will be some circumstances in which the field will be completely satisfied additionally under our reading of the library with you that there might be some but the question is you know would congress have used that the word in your sentence knowing that in most cases it wasn't going to be full payment it just seems as though when this statute uses the word given what actually happens in the real world it meant something more along the lines of contribute to the fia ward i understand your honor bit but a couple points on that first the fact that the feel that the judgment may not be sufficient to fulfill the award with a twenty five percent cap or otherwise does not change the definition of the word satisfied that are under our reading in the district court is required to use the judgment for the purpose of filling the few ward the district court may be stopped in circumstances where that's by virtue of the operation of the twenty five percent cap which is a separate intervening force that should be read or could be read it to say you know show go toward satisfy and so a dollar would go a small way toward satisfying ten dollars would go a slightly larger and so forth and so on well your honor under the under that reading satisfied need not even be in the statute we could just lift those words out of the statute as it is right now in which case you would have the requirement that the court apply a portion of the judgment but congress didn't stop there it stated they would stay the purpose for the application of the point that the judgment which is to satisfy and and our interpretation is consistent with congress's purposes underlying this congress had two purposes underlying this provision fungus wanted to put plaintiffs in the prisoner plaintiffs in the position similar to typical civil tort plaintiffs and additionally congress wanted to to a plaintiff in a ordinary tort case but i don't think you finished your your explanation what evidence is there that well your honor in terms of the discussion in the senate  for instance there were statements we cite one of them that page twenty four of our brief a statement by senator dole that said that prisoners need to prisoners do not bear the same types of opportunity costs as not incarcerated prisoners and that has contributed to this flood massive flood of litigation improve federal courts and we want one of one of the efforts congress that had was to put those prisoners  require the prisoners to bear some of the costs of the i'm sorry true on the no incarcerated plaintiffs or under nine hundred eighty eight they get all of their fees if they wanted to equalize them they would have left them alone was exactly what you said not your things in your brief talk they say limit costs and put it in the same position as non incarcerated plaintive what non incarcerated played the first sentence of the statute says in any action brought by a prisoner in which attorneys fees are authorized under section nine hundred eighty eight now that fairly strong evidence that they're thinking since it's right in the statute the first line that they're thinking of one thousand nine hundred eighty eight points now and that's i'm just saying that i can't get too much out of the language or write it would have been  absolutely clear if they'd said to help satisfy then you would lose but they didn't they said to satisfy we have the language up here about up to and we have the language down there about satisfied at that point i myself i'm not certain but then i do look to the purpose which is what you're talking about and then when i see that the first sentences put them in the same position as nine hundred eighty eight plaintiffs for what's the only instance when they're going to get their pat but but ok they will have to pay up to twenty five percent now up to twenty five now we get into the language so i get into the puzzle my thought was which i'm addressing the question  we both have the sentence that he quoted on page twelve of his brief which would have made a choice we can do this in one of two waves we can say prisoner you always pay twenty five percent for we c judge you decide up to twenty five percent which way i suddenly had this law if we take the former given the other provision of the statute which says you have to limit the attorney fees generally to a fair amount given the overall judgment and these judgments are small the poor district judge on your interpretation facing a problem where the thing is small all the burden is going to throw can be shown on the lawyer it's going to be thrown on the lawyer because he'll have to reduce the whole attorney fee in order to make this prisoner who suffered a lot not be panelists or not really be heard a lot he wants to help the prisoners my are you following what i'm saying i am ok and then then the only way to help the prisoner has gotten such a small award is to reduce the whole attorney's fees but if we make it discretionary there's another way you can have a reasonable attorney fee here a little bit higher and the president doesn't pay the whole twenty five percent we put some of that on the prison guard the state that's acted so abominably now i think which is the choice they're both reasonable choices then i go to page twelve in his brief and the preceding language and i conclude congress was on a seesaw here state that in any situation where fees would be authorized under section one thousand eight what it then continues that sentence continues such fee shall not be awarded except and then the provision goes on to did the victim here is not the government and it's not the victim on your interpretation this is i've been through it is not the it is not so much the prisoner it is not so much the government it is the lawyer because because  had the the prisoner who suffered some you know pretty bad treatment and has got a very small award the judge can help him out only by cutting the whole legal  the opposite interpretation is right the judge has another tool the other tool is to make the defendants here pay more than seventy five percent and so now we have two tools the judge has more discretion he can deal with the different cases differently and first they tried the one rejected it on page twelve and now they tried the other now that's where i am and sure your honor and i would add that because the court or i'm sorry congress in this provision limited the court's discretion toward attorneys fees in other ways for instance the total amount of the attorney's fee is kept at one hundred fifty percent of the judgment so congress took away discretion and limited the amount of attorneys fees  unclear whether it limited discretion it can look around to the surrounding provisions and find only situations where congress did limit discretion and it's at odds with it that sounds as though we're just going to interpret the statute in a general direction no matter what your honor i think that that can textual argument supports our reading of satisfy i think that you know first and foremost our interpretation is grounded in and gives effect to the word to satisfy the fact that we read it as nondiscretionary or not discretion it conferring is supported by the surrounding provisions of sexy you have a this is the same question that was asked of mr ban or do you have a way that congress could have written this statute to clearly state what mr banner thinks it means you know that's better than this if congress wanted to state congress could have used language that it always uses in fee shifting statutes when it intends to confer discretion on district courts in those speciating states you congress uses may instead of shall and states the court in its discretion and so for plaintiffs should be allowed to be permitted to retain at least seventy five percent of their of their judgment but the fact that congress reached that compromise doesn't mean that we're still really in the background of section one thousand eight e where congress moved away from the operation of section one thousand eight in so many ways for instance in section b one congress specified that the amount of attorneys fees shall be proportionally related to the relief ordered that is completely the opposite of the rule under section one thousand eight years another is another to idaho looking at the dictionary and unsatisfied isn't the case that the government pays the rest of the reasonable fee right yes you're right about it and everybody knows the government pays the rest of it right yes ok so think of a case where it's called percent which you think it can't be but suppose the judge has twelve percent you paid  ok now you're paying the rest from the government he's paying the twelve percent in the circumstances that satisfies the i think a bankruptcy think of a settlement you think of the settlement you pay for the suddenly you don't pay the time you're finished the debt satisfied in the first sentence of e g to the obligation is to pay to fulfill the if you ward from the judgment with a capped amount but this is no different than circumstances in which congress specifies a primary source to be used to fulfill an obligation and then realizes that sometimes that primary source may not be sufficient to fulfill that obligation and then specifies a secondary source i mean if my if my wife gives me a carr for dinner to satisfy my hunger but she knows that if she does that i'll just go in the refrigerator and stuff myself with lots of other stuff so that i won't be hungry any more i don't know this that makes a char now the carrots are just enough to fill up that little hole that will  wife makes a casserole seventeen percent of that casserole may satisfy his hunger there will be circumstances in which not the entire twenty five percent will be needed to fulfill the obligation or the feet shifting statutes that are clear and this is clear they're shifting some fees we tend to give district courts maximum discretion we don't look to tie their hands why do you think that given the fact that some plaintiffs are seriously injured by state defendants that congress would have wanted to take away from the district court absolute discretion to ensure that a plaintive is adequately compensated for the severity of their injury because your honor in those circumstances where the congress does confer on the district court absolute or broad discretion it uses discretion conferring language such as may and in its discretion section one hundred eighty eight b itself uses the words in its discretion and there's other examples in section five zero five of the copyright act or section eleven thirty two she won over recess those in those provisions congress provided that the court may in its discretion award  congress didn't use those words here what congress did was it made a choice congress has said that there is a lot of prisoner litigation out there and the government is bearing a huge burden on this and we are in particular concerned about attorneys fees awards so congress made a compromise krongard reached an agreement that will decrease or limit the government's exposure to few words at the same time as treating a prisoner plaintiff more like a civil your honor it's our interpretation best serves the plain language of that congress used and best serves the statutes context as well as serves the purposes underlying the p l o array thank you very much your honour's thank well the crux of this is the words satisfy the questions whether the words satisfy can bear the weight that respondents put on it and so all i want to do is emphasize how common it is to use the phrase applied to satisfy in the way that justice kagan suggested to me and not not not applied to pay completely but applied in that direction applied toward satisfying so for example the rental payments on a violin can be applied to satisfy the purchase price if if the student persists in taking lessons obviously the rental payments are going to completely fulfill the purchase price are going to be applied in that direction work an attorney does on a pro bono matter can be applied dissatisfied in the same sense in statutes that we give an example at page eight of the yellow brief involving extra pay for navy personnel who spend more than forty eight hours on a submarine in a month but the relevant p the statute is hours in excess of forty eight in a given month may be applied to satisfy the forty eight hour requirement in subsequent months even if they don't completely fulfill the forty eight hour requirement in subsequent months so in this statute  congress used the phrase applied to satisfy the most plausible interpretation of it is applied in the direction of satisfying not applied to a complete do you have any sense of how many cases up to twenty five percent of the judgement actually will be able to satisfy how often it is that the attorneys fees are less than twenty five percent know how often it is that the amount you know whether it's  twenty five percent of the judgment or some lesser amount will actually satisfy the amount of fees oh it's extraordinarily rare because because you know these cases might take hundreds of hours to litigate and the average  monetary award is a bit more than four thousand dollars so there's an enormous mismatch here it's a very very rare prisoner case in which twenty five percent of the judgment would even come close to fully completely paying the obligation for attorneys that's right thank you thank you counsel lisa submitted