can show that it was substantially justified in its position or some other equitable principle renders a award unjust here were only on appeal on that issue of whether or not the united states was justified issues that held up resolution of plaintiff's claims and so how is a court supposed to look at that situation and determine whether in the united states was substantially justified  that a finding of substantial justification has been mace made on that case as a whole we did not say anything regarding separate issues that arise throughout the case or separate claims which is more of the issue here so in undertaking it whether or not determine if the united states was substantially justified the united the district court took two different approaches both which we believe have an error a flaw in the way that they went about it as well as but the record the st step the district court did was it looked at the case on an issue of claim by claim and tallied up where the united states was substantially just fine where it wasn't now the one thing le undisturbed from this records opinion is that at least on the accounting claim the united states was not substantially justified however the just a court found that regarding the voting rights claim which was holders and named them as defendants so i apologize yes baltic we also have a really long complaint but i can guarantee you it's really simple it's just a lot of parts but once those individuals were joined the issue became is a lot of them began to file motions to dismiss as well which tied up the litigation ultimately the court backtracked on the ruling teen issue dismissed all the individuals  yes our or our position throughout the litigation had been that at least since two thousand and six when we came back from which ins are going the st time that on this breach of trust claims the st step is receiving an accounting and then once we receive that accounting we'll have the facts necessary to make claims regarding the losses to trust funds one of those we believe was that there were instances where money was being made individuals who didn't have a valid right to have right one of its st hearings coming back that part of the reason for that dismissal was an indication that the accounting should take place st arest me one of the united states had asserted that position right on why or why are we addressing attorney fees at this stage in litigation which apparently still has a ways to go and then well see i mean so maybe after you get your accounting it'll turn out everything's been done ok dory and you lose on that that would be a far different issue regarding attorney fees than if after the accounting you find gross  far as this litigation has it's not an end on top of that i think that we can look towards some of the something that's been a result in this litigation the breach of trust claim has not been resolved the fact that you're entitled to accounting has been resolved but your demands for more detail in the counting have been rejected is that the only those the only things that have really been decided here i would say the entitlement to accounting was decided and then the united states it was that part was resolved against you if you're trying to see the holistically whether you were prevailing or not i'd like to know what's been resolved i had thought that the breach of trust claim was resolved against you but you're saying it was just postponed so that probably doesn't factor either way i it's all against us was there anything result you get to accept the extent of the accounting the only other thing that the district court regard on was that the united states its position regarding rule nineteen on the voting rights  claims in our original two thousand and two petition was substantially justified and you lost on that that we lost on real nineteen and then became moot on appeal after congress a year which is reported i think what the court and i'm sorry if i'm misinterpreting the stretchmarks but the important thing was whether or not on the claims that go to merits whether or not those claims the united states was substantially justified the litigation for a long time the united states might be just the same and some things are just right on those individual issues and i know we put in our our briefing there is a concern that if that's the case that could involve the united states in taking that as an ancillary issues and deriving one occasion off the rails to an extent there's also a concern i think left by  the gene case for means supreme court of what do you do in cases where it's in effect two lawsuits that are simply joined into the same same action if you have a client title action with a tr action how does a district court handle that situation gene doesn't really offer that much guidance because they're in effect two separate lawsuits and if a party is scared that they might lose on one of those they may not on the accounting plain when you did not give any detail in your attorney for the records does that make it all fully hard make it impossible for the court to give you an award of attorney fees in that circumstance i don't think i don't think our records were not detailed enough we had specifically put in the time that we had spent through the case and that should include the time you spent on motion to dismiss issues that are roadblocks on the way to an accounting we have detailed time records that are direct reference to the attorney that's there the time they spent and the action that they were performing i'm sure in the course of eighteen years of timekeeping there's probably some ones that aren't as detailed as they should be but that's not to say that we didn't provide enough of a  specific finding on the reason the oneness of an attorney if you which is where that issue came up instead it raised concerns that our time wasn't limited to the claim upon which we prevailed which  itself raises issues on what exactly the court is looking for there is looking for a certain time period isn't looking for us to go through and identify this was seventy percent accounting thirty percent m ssion so we had done the best we could which was say these were the records that were necessary for us to prevail we had an expert from hospital in tulsa say that these this time was necessary for the print of the plants to prevail  and i would have liked to have more or more clear answer from this record on what exactly it was looking for on that issue did you follow a motion to reconsider saying in did you follow a motion to reconsider with the court we did not your honor we had looked at the issues and thought that the quicker resolution of the issue was probably appeals of this  because a substantial justification issues and questions regarding exactly what see under the district court should undertake in determining when the united states is substantially justified  but i think your honor looks like my time is up i would ask that the district court's decision judge hearts pretty quickly what claims were involved in this case because they go to analyzing whether or not the government's position was substantially justified as a whole there are a whole bunch of claims that did not get discussed that were resolved and i think clearly inform the district courts proper exercise of discretion here to decide the united states position was substantially justified there are actually three issues in this case not not just one as mr simple states but i want to start with the substantial justification one because that's where he started so if you look at the issues in the case there are i by my count about seven so the st one in this goes back to their very st complaint they had a voting rights constitutional claim that was rejected by the district court on grounds of it needed to be under rule nineteen there needed to be the tribe joined that you know issue went went up  the to this court in the court ultimately decided that it was mooted by a statute that was passed so called that one in your terms judge hart sort of neither here nor there for purposes of assessing that raising issues ok ok nd issue you agree that distributions to not osage and the fact that those who didn't have a lot means those who didn't have had rights couldn't vote under the tribal constitution and their laws so that was integral to their to their case but it round up not being resolved non o sieges and that those should be overturned they abandoned that claim as well after was rejected the district court pointed out that basically under a series of congressional regimes it was entirely possible prior to  point is here to show that they could invalidate non o seach had rights was rejected that claim was rejected clearly as something the district court could look at with their start on the mare yes on the merits now let me ask only any of these that you discussed so far spent on instead what counsel did was they filed block time entries we have here that the trial court found that they were the prevailing party right the trial court found that they were the prevailing party your honor only on one subject you which was the issue of they had a right to an accounting they the district court even rejected the idea that the united states that you know it's actually say the district court found that the united states position on the scope of accounting was well taken and that came up to this court in an appeal in fletcher three this court affirmed the district court so they lost on that issue and so they lost in a host of merits issues they tried it to you know turn back the time clock and say that the accounting claim was central to their claims all along if you read the the the original complaint in the three amended complaint it's clear that the essence of what they were really trying to do was recover the non o seach had rights to invalidate those and then try to eventually be able to get money damages for those over in the c f c well he failed he was trying to get my point is counsel is are separate complaints when they lose one they follow a new complaint or the i'm in the old wood and proceed a claims which i was about to get to you were rejected they also spanned all of the complaints and so actually let me make one more clarification point in response to a judge hart's question which is this case is entirely done i don't think we can say that the attorney's fee motion is premature because there is a final judgment you know the only relief they got was this limited accounting which was not much more supplemented especially after this court's decision and fletcher three beyond information united states has already given to the tribe and then the court will entertain defi motion it decided it that's the end of this case players have a separate case in the court of federal claims where they're seeking monetary damages they are they may try to resurrect their claims that there were mr pugh chanst or not osage but in this case that was entirely that theory was entirely rejected by the district court and stepping back at the full range of the cause of action that i described to your honor's in the original complaint and thriving through all the other complaints it's clear that the district court did not abuse its discretion in saying that if you look at it holistically the united states position was substantially justified the other side tries to say that where a lies in the issues because there were multiple legal claims floating around in the case but i mean you know that they're the ones who are actually trying to focus myopically on the single issue of the accounting and pretend as if that were central to their theory all along whereas i would say your honour's if you took a fair reading of the initial complaint and the st three amended complaints before the action was wholly disposed of you would see that you know there's any counting is a concept floating around in there but the district court found that it was a subordinate issue it was an issue that they were feeding in as a basis to try to recover and get back the non o c h had rights have been transferred over time and that theory was just flatly rejected by the court and they defended really the government should not have argued against you on that point what's wrong with that argument and so so your honor wrote that argument in our or as it applies here yeah i think your honor that in saying there shouldn't be atomization that basically what the supreme court is saying is that there shouldn't be sort of just a naked nose counting exercise you know of there are a total of five claims they last for you need to take a step back and look at the action as a whole and i you know  we're talking about assessing the district court's decision here about substantial justification under an abuse of discretion senator review the just record it didn't look at the action holistically it didn't just it looked at the individual claims because it's hard to say you can look at an action holistically without looking at at the parks right but even if some of the parts is larger than that the district court looked at that and said here that you know the united states position was substantially justified because so much of and the grabbing then of what the distinct causes of the action different different facts you just decide to bring them all in one complaint rather than file three different suits and things and in that circumstance should you be able to recover your attorney fees in one with respect one claiming even though you yes you did on four or five other yes and that yes you think that's ok yes and that goes to our rd issue which  is just record gave them the opportunity to do that and they failed to make evidence cherry case for it with billing records that were not just block time entries saying things like work on claims in the case right so the district court said give me a nd segmentation analysis that shows me what time you spent on the one claim you prevailed on the accountant and after repeated chances you know being given to the a place to do that they failed to do that in the district court said another reason why i'm going to hold you don't get a matters like how are you going to give me evidence and then expect those to be a big here that order was not obeyed by the district court and the players have no excuse for even trying to bury it in their brief and say so today we heard there's only one issue substantial justification brief we hear there are two issues substantial justification and whether the fees were incurred but in reality there are three dollars issues incurred substantial just patient and disobedience of this worker each one of those is an independent round that requires a firm and so the district court and the so i've spoken about the special justification issue explained why i think that the district court's exercise discretion here was proper in looking at the action as a whole and saying that united states substantially prevailed then on the issue of the just records order saying give me segmented time entries give me the detail that shows what time you know you spent not on actions not on claims that were rejected but on the one accounting claim you prevailed on and despite repeated attempts they couldn't produce that the last issue your honor is the issue of whether the fees were incurred at all and that's an issue that i don't think mr strobel really focused on but let me let me try to do that here if you look at the fee agreement which i have here from two thousand and nine it provides basically that fees will be incurred only if one  three contingencies happens one the caption case settles or the government is worded to pay over amounts improperly paid to nano sages now you see again what how central paying the non o sage's was to the clock cause of actions that they actually brought were rd the lawyers obtain funding from a rd party willing to underwrite all or part of our fees the district court found that none of those three contingencies was triggered and on that basis no fees were incurred to counter that  to rely on a decision from the th circuit in which i knew about so inside i thought you were really contesting that point on appeal you were just  you were focusing more on the fact that there was an evidence that the parties would actually turn over the money to the attorneys but yes but i  turkey works on the case when you can get fees and do the things that you so your honor i think whether you conceive of it as an argument based on the text of incurred and i recognize you know what the court said and you're writing for the court said in centennial or whether you conceive of it as this obligation to pay over fees there was no obligation to pay over fees here and i think that your decision in centennial is consistent with the notion that the fee shifting statute should be read to avoid a windfall and the turner case in which the plaintiffs you know most prominently rely said that in that case there was a very clear agreement to pay over fees from the client to the lawyer and we don't have that in this case it just a court found there was no such obligation to the engagement letter states counsel's the will be forty percent of the amount one page in settlement or two paid by the u s government any amount right so that means both of those conditions need to be met and one of them wasn't met because the government wasn't ordered to pay any fees to the judge actually consider that language yes i mean he this language is the language he quoted in his opinion i have five seconds left so let me say that if the court has skepticism on that one issue i still don't think that's a reason not to affirm on the other two grounds namely the district court order was violated and our position was substantially justified