discretion in awarding nearly four hundred fifty thousand dollars and attorney fees to a plaintiff who prevailed on a single civil rights claim claim for monetary damages and received nominal damage nominal damage award of one dollar now we know from the supreme court case though for our versus hobby that you know order to recover attorney fees in such circumstances there has to be something more fraud then just a nominal damages award and i think the central issue in this case turns on whether there is something more what that something more can be and whether there is something more here that would legally entitled the plaintiff to the award and i think there are three factors i want to turn to turn to those three factors because i think by looking at those three factors we can see how the district court misapplied the law it's a what was based on the misapplication of the law first factor is the extent of relief obtained by the plaintiffs and this is this is in for our itself the majority opinion says this is the most critical factor the district court must look at that and then the other two factors are  identified by justice o'connor and her concurrence which this court has applied in prior cases as additional factors to look at and that is the significance of the legal issue and which the plaintiff prevailed and that third whether the litigation not what was what was the subject of motivation for the plaintiff's lawsuit and the reason i say that is that i struggled with this at this very issue until i read carefully the the mer duke university case which i submitted a supplemental authority last week fourth circuit opinion and there in my show that the court concluded in the find this factor the critical factor that the the declaratory and injunctive relief claims had been dismissed certainly there would be no attorney for your ward no basis for awarding attorney fees but the plaintiff continued to pursue her claim for monetary damages and that's the objective was advised that her university was at this point in the commission had the authority to recognize degrees of institutions that were comparable and her institution was being comparable hence there was no longer going denial of a of a feel for it and i think the legal error that the district court committed was by looking at the subjective motivations of the plaintiffs in pursuing pursuing the litigation further that was a good thing for the plaintiff and were not subjective motivations of mr contrary and that's just for mercer we have a legal a legally significant ruling here of the liabilities based on the subjective motivation of one individual and so i would compare this case is more like two cases actually three cases more it's far itself which both parties address and it's also more like two other cases in which appellate courts have found that few words  rights clearly was and the jury so found that there was a violation awarded nominal damages of a dollar and the the district court said yeah this is an important important issue and awarded thirty five thousand dollars in attorney fees the reverse as an abuse of discretion and the reason it was an abuse of discretion in that case i think is because liability basically came down to the actions of one person the  cited in our briefs that case johnson is very much like the facts of johnson is very much like the facts of robert versus nichols which is a prior ninth circuit case except in the  district court awarded ninety eight thousand dollars in attorney fees and the for the fourth circuit reversed as an abuse of discretion again and i think now because you know the invasion of the home the constitutional rights the civil rights issues that they were important just as mr belton's first amendment rights are important in this case but because it involved the actions of a handful of police officers in that case to this case is quite the same mr stating the your creditor you're not that's the end of it so his discretion came in actually enforcing the provision after the amendment the commissioner at least perhaps not him individually but the commission makes decisions with regard to what programs are comparable or not and i think that and that really relates to the third question whether that at the district outside of those those limitations on his discretion in making comparable decisions might serve a public purpose but i think that's wrong because fact finding authority only the authority to determine whether a particular institution unaccredited meets the standards of academic quality established by the u s department of education that's a fact finding role that  based on fact finding but fact finding with a standard comparable which sounds to me like it isn't so much civility it is different i said no to quickly it is different because whereas before that the commission and mr interest there were no standards to govern his decision his application of the statute now the only time when unaccredited a degree from an under credited institution can not be used is if the commission's findings that the institution issuing the degree doesn't meet the standards of that academic quality so now it's  very much constrained that's the difference i think between the current law and the prior lot and i think i get what you're saying although there's still nothing that would i mean suppose  well presumably the same possibility is there now you could have somebody with the minister too soon that hasn't formally been found comparable might still the commission has to do something that was trying to enforce the provisions on the doesn't enforce it it's just where it was but if it's a degree from a united states institution then the commission would have to go through that determination that it doesn't that the degree the institution doesn't meet the standards  at his ruling serve the public purpose because it's limited to discretion that remained in the agency and i think what happened is that discretion with limited not by the judgment entered in this case but by the  statutory change which changed what was a kind of a standard list review discretion with wide open discretion the no standards into a fact finding function with clear specified department of education and i think it would be subject to judicial review under the oregon administrators procedures act not the type of you know just standardless you know who can i single out it there would have to be that kind of just  substantial evidence if there was substantial evidence that the institution did in fact meet the standards established by the department of education then it then it should be there well there wouldn't be any discretion i think the commission would have to of judgment which issues judge hogan did not agree with the point that he made in a post trial briefing about attorney there was no declaratory judgment mentioned and if i may i'd certainly like to start with what judge michael said about what he was the determination that there was a violation of constitutional rights and in doing so he again called it a declaration that water is not of any other nine hundred eighty three nominal damages going to have even nominal damages you have to have an education that there's been a violation so far and all the other cases you have exactly the same kind of declaration that the supreme court says that's not good enough you're going to actually guess that those are different in that judge hogan for reasons of his own thinking did not think it necessary to add declaratory language to the job document because it was in the accompanying conclusions of law findings of fact and here's what he said on the motion that you were just asking i'm not sure that's no answer to my question how does that make this different from farrar or the other cases where there are  judgment of the court enter judgment that a company that because he said that was predicated upon what he had done simultaneously in the language i point to is the conclusion of this link the opinion finds if a conclusions hogan continually consistently said that he had entered a declaratory judgment he said that that was necessary to award the nominal damages that he had awarded as he was discussing the public benefit arising from the decision he where he said the court notes the significant salutary salutary effect achieved by this litigation in the future action by defendants with respect to similarly situated degree recipients will be guided by the constitutional parameters delineated by plaintiff's efforts in this respect the success of players in obtaining a declaration that contrary says conduct in singling out plaintiff's degree for regulation because of bias toward the viewpoint of the institution from which they were received not only simply do not understand how that could be anything more than the nominal damage award or how this different from farrar or the others because every time you have a one dollar nominal damage award you have to have a  just before the bottom of page three sixty two of farrar in full right the supreme court created an exception to the general rule governing a district court calculation of attorney fees the court held that nominal damages case in which relief is demanded most are exempted from the general requirements that govern the calculation of attorney fees that require the lodestar it goes on to say the four are exception again treating this as very much an exception of the usual rule which would allow the achieved only technical success i would suggest that graham's numerals didn't receive one dollar you see seventeen that's the last however it then goes on to say and this is the middle of three sixty three even if morales is damages awarded were nominal even if it were one dollar the career exception would not be applicable here whether the plaintiffs success is purely technical or diminished is determined by examining other factors the court determined that nothing was vindicated the allegations were seventeen million in damages were owed because a conspiracy violated the civil rights of the individual the only individual who was held liable in the case was not a conspirator and there was no finding of a conspiracy or that a conspiracy had caused damage to the individual there was a discreet harm by one other person which is what permitted the nominal damages awarded nothing further i judge hogan i think correctly distinguished or recognized the difference from farrar one thirty two as he faced the very same argument that mr bush owing made here are the court compared the nominal damages of trained to the seventeen million sought in this case plaintiffs initially did not even seek monetary damages but primarily sought to challenge the constitutionality of the statute issue and judge hogan found that there was a violation as applied to a misspelling and so we don't have as in farrar nothing but nominal damages and that's why judge hogan rejected mr bush on the argument that nothing had been accomplished to discriminate to exhibit bias based on his view of the institution that's why judge hogan felt and concluded that that would be of benefit to others as well with similarly situated institutions meaning those that were serious minded but had not chosen to receive accreditation or have not received accreditation just listed on the second part of your question which was essentially that the general rule is nominal court in increasing the nominal damages the number of people receiving nominal damages should consider an awkward recalculation of attorney fees willcox involved a one dollar nominal damages award and up held attorney fees six hundred sixty six thousand dollars rather than she moto involved in award of zero even though there has been a request for a nominal damages and i've held attorney fees and said that the district court properly declined to invoke the fair or no fee exception and so and then moving to other circuits briefly the fourth circuit in mercer held in a nominal damages case one d awarded the three hundred some odd thousand dollars an attorney it cited the purser again this is in mercer footnote six india's rivera decision that came down after our briefs the first circuit awarded only nominal damages but a word or two thirds of the requested fees the second circuit and cobra which we cite involve nominal damages of one dollar but said quote nominal damages can represent a victory in the sense of indicating rights even though no actual damages are proved and awarded attorney piece of three hundred thirty five thousand the eighth circuit in murray which we cite i had a demand of five hundred thousand dollars damages i morales o'connor test and that is first the extent of relief granted judge hogan thought he had made a determination that there was a violation of mr benton's constitutional rights  said she prevailed on quote the court finds that defendant contrary actions violated plaintiff first amendment right to free speech and free exercise of religion and so there was a significance of legal  the perceived discretion that mr contrary and his office had and i'd like to come to what that discretion still lives i don't think there's any question as mr bush said there was wide open discretion before the statutory amendment but the current version of or a section three forty eight point six zero nine one d only contrary to what mr bush says that it makes everybody's degrees permissible unless found impermissible by the commission it's the other way around it makes all unaccredited grease impermissible where they may not be spoken about in the state of oregon unless the commission has upheld them what it says  an institution that quote has been found by the commission to meet standards of academic quality comparable which is the word you asked about to those of an institution located in the united states that has accreditation recognized by the u s department of education that doesn't mean accreditation granted by the u s department of education but accreditation by an accrediting body approved by the u s department of education to arthritic grease of the type a hand level claimed by that person which involves a great deal of discretion still and again the statute makes very clear it's not that all degrees are approved unless disapproved is that all an accredited to greece may not be spoken about unless they have been approved under one of the statutory provisions the we list of the trial nearly a thousand degrees on oregon faculty side melinda benton's that came from unaccredited or foreign institutions so selecting among those which to prosecute i something that mr contrary and his office may no longer do because judge hogan has made it clear that that would be a violation of the first amendment in addition to circumscribing the at the discretion and so my suggestion would be simply that the ferric test is met that as interpreted by miralax in wilcox post fair decisions it is not at all fatal even if this court says there was no declaratory judgment there were there were only nominal damages nothing more and this court would be in keeping not only with those ninth circuit decisions but with most of the other circuits that have specifically addressed that issue of nominal damages and nothing further in the judgment of the three part test that this circuit has adopted i would suggest is match each of the standards and again i would remind the court of the standard review the standard of review is sort of an abuse of discretion standard and not a dyno for review except to the extent there is a legal conclusion embedded in the judge's  findings otherwise i'd like to indicate i may by two things the first is to say that the not only does the fair tax just stand met here but this circuit the continuing rule that a prevailing plaintiff should ordinarily receive fees unless there are exceptional circumstances i'm pretty sure resumes clear that the district court should make clear that it the amount of the one is to be awarded i think it is your honor and i think that judge hogan did so among other things it was the same document in the same discussion when he went through the  board one third one third i did not see anything reflected a reduction or even a discussion on this comparison in the relationship between the amount of the awarded and the results of your honor i would just suggest that as you look back at his order granting see that you will find that he was considering the dollar nominal damages and the very direct argument that if you are awarded a dollar nominal damages in the document caption judgment you may not award attorney fees to go to both the issue of entitlement and amount and that he very consciously considered it in regard to both and again since that is only the exception to the general rule mr benton was using a degree from an unexpected institution back then what he did was he made the institutions unaccredited call that to the attention of the community college and said you can't use that under oregon law you have to put an asterisk by the degree as reference in the college catalog and put down below on the credit which is true that it is on a credit and that's what he did and he got that authority that what he would have to do now he could call it to the attention of the community are just as he did then but they could but misspent you could say wait a minute my degree is from an institution that is the same academic standards as terminology requires the commission to make a finding that the institution meets the standards of academic quality that's comparable to what the department of education makes a determination looks at the college catalogs as he did in this case fines degree sets from institutions that unaccredited then he could at that point call it to the attention and if he chose to say from institution a i calling it to the attention but not institution beat even though it's also an accredited he could still do that but what happens next is what's different and it's the next step that i think of as a lemonade at the possibility of any singling out  that that's a very difficult question but the first factor which which was identified by the majority is the most critical factor we know that the extent of success and i'm not sure it's just the third factor alone would be and asked and i'm also not sure how that factor you know that there is something like that factor even after the shock and in case they got rid of the catalyst theory i know that because mercer tells me that if you if you receive a landmark ruling or something that applies across the