court only awarded the fees that were presented by the city apartment that makes appellate review impossible which also takes away a deference typically afforded to the district court and that's this court's  ability to pay that really really is significant you're dealing with two dollars firefighters they got smacked with one hundred and seventy dollars over one hundred and seventy three thousand dollars in attorney's fees this  creates so that's because each will be significant human problem for them but for the populous a whole for citizens it creates part strong chilling effect on any plaintiff as a public employee in lesser bring a civil rights case in getting their attorneys fees are very unusual and civil rights plaintiff cases that again we believe that the post hoc reasoning in getting there in terms of of and of using this reasoning to and the judge determines under the christians standard or says he does that this was without foundation so what's post hoc about it bostock was that the decision was done for be frivolous after extensive discovery after the motion for summary judgment and the summary judgment decision unlike the case of riddle versus as bonjour the trial court never used the word frivolous but never procedure posture two of the case of riddle where the case was litigated through summary judgment after extensive discovery and in that interestingly enough in riddle the court used the words frivolous the decision this court overturned little based on it being not an egregious case of misconduct because the court must also consider here that what the what the law is in terms of the st member television law court was that it was the speech was made with a reckless indifference to truth and they had no merit the whole site the whole tack by the city was that the speech had no merit and that's clear in their briefing inciting that the investigation and the allegations made in the speech what is the foundation they have you had well it's strong i think and it was brought before people put forth before the trial court both the chief insisting chief of knowledged that the plaintiffs cared about the the fairness of the testing which was a subject of a speech that was only sent to the human resource department and fire chief the chief french testified that i believe scott begbie felt there was some truth to the basis of the contents of the letter the union president said it was understood the language in the letter was understandable in significantly the arbitration decision in favor of the city provided that the arbitrator rejects the city's claim that the grievance made the charges knowingly that knowing that they were false so the whole the whole point is the court said these guys had no merit they had no that the clip that the allegations internal believes and is that enough proof to take it out of an arbitrary loss of the internal beliefs yes in fact the reasons that th of deposition testimony ill opposition summary judgment to support the reasonable basis that they believe the speech was true when they wrote it and there was pages and pages deposition testimony that we said to her brief that supply the foundation let me focus on the what they believed in christina's bergan other cases is is that stated as a basis that is if i believe that i saw mary in cincinnati and say that proves something and it's proven that she's really in pittsburgh the whole time my case is without foundation isn't it no your honor i mean i don't i don't think reasonable basis to believe that there's it was protected right ok the trial judge didn't focus on that he he said you had no basis for your assertions where is the lawsuit was about being punished for their speech right exactly exactly that's the point they lost the lawsuit is not about the truth of the speech court trial court was all wear of this because extension for granted but in this basis now this is again the lawsuit here is not about the truth of the speech we understood that the speech was not true or not at least not completely true when it was made but it  c versus city of leiria rogers versus banks chappell versus montgomery furred apartment exciter others of many cases that say that consistently so you have to say basically a forward's that no law for claims and that they they said that there is no merit here to these claims again the plaintiffs were not alleging that the speech they are arguing that the speech was true they were arguing that they were punished for their speech they sent a letter because they were concerned about the speech and the judge was irritated because they brought the lawsuit that that's the case i would like to reserve the rest of my time pre and here today on behalf of the city of parma arguing in favor of the district court's grant of attorney thiis in the words of the district court below this is precisely the type of case in which an award of attorney's fees is  both warranted and appropriate and what we see from plaintiffs are basically four arguments the st being that the trial court relied on post hoc reasoning or hindsight logic the idea being we had to get all the way to the point where summary judgment was granted before this motion for attorney's fees was presented to the court i would argue that's the appropriate time to entertain a request for fees it's not when the complaint is filed the fact that the city did not file a motion for judgment on the pleadings or a motion to dismiss is not dispositive either the simple fact is plaintiffs crafted a complaint which factually would have survived a motion for judgment on the pleadings or a motion to dismiss that doesn't mean the claims have merit that doesn't mean there's any truth or any foundation anything that's alleged in the complaint it was just carefully crafted in a manner to survive an early offensive motion to dismiss  what am i missing i mean the grab them into complete is that they were punished for their speech occur yes ma'am and they false speech that had zero evidence to support speech that was examined during for an independent investigation and to arbitration proceedings all before the lawsuit was ever filed so to suggest that these gentlemen did not understand getting disciplined for years for their speech now the trial court made a legal ruling the claim failed because the speech for basis well you decided that was not entitled to st amendment protection but not for the same reason as the just right that's right and we said you lose because this was not speech of publics of significance this was a person act ok both of those i think or fairly sophisticated legal analysis whether your speech is protected as personal or public i mean there are tons of cases about that and people lose and whether it was protected because of the nature of the speech we quite frankly we you know that was problematic so we're both complicated legal issues it's w that make the case frivolous i mean you could say that their complaints lack sufficient basis but you know they did predict who was going to get the job  but putting that aside why was the case itself which was a case challenging it was it was a purse to mimic case challenging discipline for their speech why was that frivolous why is that the kind of case that you do says against the plaintiff in the civil rights case i'm just i'm just missing it and i didn't hear the judge address that either the judge just said your claims had no basis it didn't say that the claims in the lawsuit had no basis i would agree that the case law surrounding the st amendment is complex and there was a reason that the briefing was as robust as it was  i think what becomes more or more simplified in this case is when you look at the plaintiff's basis for filing the lawsuit in discovery it came out  that mr bagi use the lawsuit as a weapon of revenge and threatened others at the fire department with a lawsuit prior to it being filed this was not an instance of i sincerely believe that my speech m protected under this this complex analysis of the st amendment it was i'm a disgruntled employee i don't care for what happened i'm going to sue you and i'm going to make you pay for it so when we look at  when we look at the law and what the law tells us is that we look for whether or not the case was frivolous unreasonable or without foundation i think what judge nugent picks up on is the without foundation  the judge nugent discussed the judge nugent discussed the fact that the case was utterly without merit that the letter signed was signed and written with reckless indifference to the truth that there was no evidence whatsoever of wrongdoing ok but that is my understanding the judge nugent's reasoning that the underlying letters had no merit not that the lawsuit had no merit i don't remember reading in his opinion a reference to using the wall suit as a weapon did he mention it was mentioned in the briefing that came out during discovery it was highlighted in the briefs i do not believe that specific evidence found its way into the judge's ruling i think instead of for looking just at the ruling on the motion for summary judgment not the legal fee issue no i'm talking about the legal fees oh yes no repeatedly did not that specific quote he mentioned that there was no merit to the allegations they were demonstrably false they were knowingly false at the time they were filed but the allegations of the allegations in the letter right yes ok his entire discussion was about the letter not the lawsuit challenging disappearing disciplined for the letter because the letter serves as the foundation for everything that happened afterwards so without the letter there is no st amendment lawsuit so for going to discuss the st amendment lawsuit we have to examine the basis for the claim the basis for the claim the latter and what happened after the letter was issued does say there was no basis for this lawsuit and i take that to be this as he says just before that the  st amendment does not protect statements that are false and may or may be with reckless disregard so if he's right about that park if he's right as to they are being fal then there's no st amendment protection and that's a judgment on the lawsuit is in the us there and i can go back to your example i can remember the name of the person maybe mary i saw mary yesterday in cincinnati if mary was actually in pittsburgh i don't get to say i saw mary in cincinnati yesterday with no evidence no investigation and no support and then say well i have a st amendment right to say i saw mary wherever i want it that's not the way the law works that's not the way it's supposed to work and in this case judge nugent did not abuse his discretion his substantial discretion in looking at the facts and taking a deep dive into the discovery into the case he lived with the case for years there was without a doubt robust discovery and reaching this very conclusion there's also no argument that the district court was not did not have the authority to award appellate  instance plaintiffs make the argument that had the city wanted to pursue its attorneys fees on appeal it should have availed itself of this court and federal rule thirty eight dollars to pursue fees  district court that these gentlemen could not afford that feat there was no challenge to the attorney's fees below the amount the reasonableness of the fees below that they were here they did but they didn't put forth any evidence why they wanted the hearing the fees are duplicative the fees are excessive we you know we have all these problems with the fees let us present evidence supporting those claims there was none of that there was a request for a hearing ye there's no entitle me to a hearing under these circumstances the rules say only if there are sufficient evidence before the district court in this case there was there were detailed fee bills and a fee that was well below the commercial  the reasonable rate in the community but part of it is to decide whether it's reasonable in light of the the lead mantle situation of the plaintiff isn't it isn't that part of what you consider if the allegation was raised that these fees are unreasonable these gentlemen cannot afford these fees it should have been argued and put before the district court in the pleadings or in the motion they asked for a hearing to address the request for attorney's fees they did not ask for a hearing because the fees that were being requested were on reasonable they did not put forth any basis for their request for the hearing other than we'd like some discovery to look into these issues we've put our carriers on notice we need some time to get them to get coverage determinations i believe is the exact request there were no requests to challenge or bases for challenging the fees that were presented again the standard of view here is abus discretion to judge nugent abused his discretion in awarding the fees without a hearing the case i will tell you no he did not and no the hearing is not mandatory in conclusion or order that if there were a finding that these these fees were somehow unreasonable or inflated absolutely the city at the taxpayer's expense has been forced to defend itself over and over again against groundless claims that plaintiffs pursued behind beyond reason the factual record below on equivocally demonstrates that there was absolutely no evidence to support these claims this was not free speech it was not entitled to the protections of free speech that's been determined both by the district court and this honorable court for those reasons and because no one ever said plaintiff's claims were groundless at the outset of litigation no one but the city of perma not the judge again for lawyers looking at this case taking it on par the plaintiffs didn't see  all retaliation law is complex very complex for any lawyer to sit here and say or do that is there any law that says it has to be clearly groundless at the outset of the litigation because you can file a complaint with all sorts of wonderful things in it and that is the case goes on it's all hearing no no i don't think so your honor and but but i think the fact that the plaintiffs came forward with a foundation as i indicated before the testimony of the fire chief testimony of the union president the arbitration decision the count was pages of deposition testimony that pointed to to to lay the foundation of why they believe the speech was true when they wrote it i don't think it was a makes misconduct for any lawyer to say that this is a this is a recklessly indifferent speech because it was false or it was not of a republican cern that definitively st memory law st met retaliation law they'd be lying it's at the complex looks up to extreme cases of course and this is not extreme case it has to be trimmed case to work these and this is not one of them a pair of speech which turned out to be incorrect mirrors and is similar to instances other cases in matches the underlying princip have st amendment protection if it was made with a breathless disregard correct but just because they're not afforded st member protection doesn't mean attorney's fees are appropriate and that's why we're here we're not arguing whether this is protected speech or not will greet not protected speech we're here because it was not in the greek this lawsuit was not an agreed just case of misconduct they brought this was they were punished heavily that would show any public employee c aint going forward to see a purpose fire department you think any other firefighters are going to complain about something i don't think so not with this no no no no the whole reason here is because the fees because  fees yes that would be primarily the nature of discovery absolutely so so in the motion it says we want to discover what the average is in akron we want to see in the motions time sheets i mean i can think of lots of things you might want to discover but did you say any of those it was this the motion stated i don't remember specifically stated but we asked for discovery on the results of the fees we asked for and we cited cases that we would have done that three healing process which we were not afforded we asked for that repeatedly while the documents as you know here's their financial statement there's no way they can pay this i don't we recorded do that i mean that's just it i we asked were we thought we were going to get an opportunity to make this argument and support said no not necessary by it doesn't say that you didn't raise this argument you should have brought something to me just said not necessary and needed i have what i have what before me i need to word fees and that is their time sheets and that's it no discussion about it we had we asked for the hearing for the opportunity to make those arguments it was the case your dinner time on a case is closed and in terms of the argument you're talking about you asked for was to say that my client can't or what they're asking for that was part of it sure and that what they're asking for is unreasonable all of that sure we want to discovery on that issue and we want to hear in that issue we yes what repeatedly court well we have the time seeds we feel that there is some duplicate billing here's an example and we'd like the opportunity to examine  more discovery about this billing but we i mean we didn't get that detail in the motion request discovery i don't think that was necessary to get in the net that that much detail we asked for discovery the in the terms of the probably a short deposition probably that's probably the case sure that's that's that's exactly it and did you need discovery to determine whether your client's could afford to pay it no but we were good we would present that in a hearing format your but we present that  you know throw it up on whether to see if we got some discovery or oregon or do or i'm listening to your answers and yeah we might have done that yeah we could have done that but we wanted to do our motion is about it's not a jump ball what we want to do that we asked to do that be pitiably it was not just one time it was everything we filed that we asked for that the billet consistently are really three should be able to look at the docket and find a motion for hearing or a motion for not very short but we asked for a feat of discovering in the fees and hearing it wasn't specific in terms of what we were going to do lie it out but we didn't feel that that was necessary it to ask for a skiver in hearing and it's these types of fees is not abnormal and we cited case law to support our basis for asking for were there any findings between january and july lots lots and i think that was the st that the point is from january th to august of eighteen the court never dressed it and we kept asking the court never addressed it until i said not necessary and that was how addressed it it was insane well you didn't do enough you didn't present anything to us to suggest that we ask the court also consider the language in the court's decision in the irritation against the parties playing he different justice thank you very much