we'll hear argument first this morning in case fourteen thirteen seventy five c r s t v then expedited versus the equal employment opportunity commission mr smith mr chief justice and may please the court on the issue we initially asked this court to resolve in the petition for certiorari the parties are now in complete agreement that issue of course was whether a prevailing defendant in a title seven case is barred from seeking attorneys fees if it hasn't prevailed on the merits as we showed in our opening brief such a rule which exists only in the eighth circuit makes little sense it doesn't use the story not propelled by the statutory language and doesn't serve any rational statutory policy to take away the power of the word feasible in a case of a non merits disposition the e e o c having staunchly defended that rule in its brief in opposition to did it executed about face on its merits brief and now agrees with us that a non merits disposition can be the basis of a defendant attorney award under title seven for that reason and for all the reasons in our opening merits brief which the government apparently found convincing at least we would suggest that the court should or should reverse the eight circuits ruling and resolve the circuit conflict and rule that prevailing defendants can see fees would go as long as they meet the christiansburg standard whether or not the disposition was on the merits there no questions about that the second issue is what do we do ground it was dismissed i couldn't agree more i've been reading these briefs with or without prejudice there it's non merits i don't know that even if it's if a judge gets to that point of deciding whether it was on the merits or not that's not enough you always have to decide the bottom line right but the eight circuits ruling was that even if it was frivolous or on reasonable or without foundation if the reason it was frivolous or unreasonable without foundation was the fact that it was  claim under title seven what the e e o c needs is a pattern or practice which means either express policy this discriminatory or some unexpressed standard operating procedure just the term the court used in the teamsters case in the absence but what became clear is the case proceeded is that a that the e e o c never investigated any kind of pattern or practice at the investor tory face alien vesta gaited two cases and then when it when they started alleging that they had a pattern of practice telling the court they wanted to go to trial  pattern of practice we filed a motion for summary judgment and said what is your evidence that there's a consistent policy of disregarding these complaints that there is a consistent failure and the as judge reed found the evidence didn't remotely support that the evidence it was rejected by the eighth circuit as fact is factually baseless on page ninety two of the petition appendix they simply didn't ask a question that called for that until later in the investigation and what that both all the judges below the district judge in the majority  more information then the e e o c requested that's on page one sixty nine of the search petition appendix when they later on asked for all the people who had filed charges of discrimination we gave them all that information that was about eight more people that they got finally at the end of the investigation face they said give us the names of all the women who have been for you in the last several years with their contact information we gave them that they didn't do anything with it they then filed their class of finding of a reasonable c having investigated ms stark's complaint and one other with did no sort of systematic look at how things were done at the company and then when they put together this case in court they listed two hundred seventy people who are so called class members and it turns out most of those claims washed out they simply were non meritorious and we file a motion for summary judgment saying they don't have any evidence of a systematic problem here of a claim of a pattern or practice and judge reed looked at this wealth of information which is developed a hundred fifty four depositions accepted the truth of everything that those those women said in those depositions and concluded that in fact by and large the policies exist the policies are followed people complaints are followed up remedies are put in place women are protected and she said to assuming the truth of everything that's in these depositions there may be examples of sporadic exceptions to that where the managers could have done a better job maybe they didn't act fast enough maybe they could've been more severe in their sanction or whatever but that that's no rational finder of fact could conclude on this record that there is any kind of pattern of neglecting sexual harassment complaints and the kind of problem with the policies that existed any kind of problem with the training that was all factually not true it is true that there were some complaints which of course when you read that are quite serious but that doesn't mean the company is libel certainly not libel on a class basis where a national phase of the trial where we prove that it is their de facto policy to neglect sexual harassment and then we're going to have a damages phase where individual claimants will come in and so we had a class claim which they said was a pattern or practice came and there was no way at that point for us to say well you can't live get these individual claims because they were characterizing these people that's class members and they were going to use them as witnesses to establish this supposedly this policy of neglect of sexual harassment  then do two hundred fifty four depositions of all of these people that were except for the ones who didn't show up at all the other ninety nine and most of those claims turned out to be non meritorious even accepting the truth of everything that the complainant said we then file a motion involving different drivers different charges different conduct different responses and judge read reads thousands of pages of testimony and concludes there isn't any evidence that would allow a rational trier of fact to conclude that there is  you understand the government's position we can ask them in a few minutes in what cases where there is not an adjudication on the merits would the government agree that there is a prevailing party with the issue or some other merits none merits issue like statue of limitations or something else that appears to be their position and i think the problem with the without prejudice with prejudice distinction which they brought out in their merits brief is that's the first time in this litigation that that argument has ever been made by the o c they have never in the lower courts ever argue that a the disposition here was without prejudice or b that that's a basis on which c r s was not a privilege just meant understanding that you think that  disposition here was with prejudice right let's just assume that it were ok but leaving aside the waiver in the fact that there's no factual predicate for the argument here on the merits we didn't have an opportunity to brief this issue because it's not in the case until we're writing a reply brief so we have about a paragraph on the issue i think that it's there is that there is a circuit conflict on the question of whether or not a district judge ought to have the power in the suitable circumstances when dismissing a case for failure to do something like precinct conditions where there was a sufficient level of abusiveness by the plaintiff he should have known he or she should have known that this case was not ready for suit but it has cost the defendant money that should have had to be spent that even in it without prejudice dismissal situation though out to be the power of a court discretion even if the reason for the for the dismissal is completely curable well it's curable perhaps but there are going to be situations in this case is a good illustration where you can't get rid of the fact that you've spent lots and lots of money a little gating claims which if they'd been best been investigated they had to make reasonable cause findings and been conciliated likely would never have seen court to begin with eighty seven of these claims were summary judgment was granted after the women were to post ninety nine never showed up for their deposition then you are suggesting that whatever the reason for the dismissal is with prejudice without prejudice for any reason whatsoever curable or not it's up to the discretion of the court i guess i would given the severity of the christiansburg standard i'm it's not clear clear to me that you can't trust district judges in those situations and it's not clear to me that we need to have a categorical bar the turns on this issue with prejudice or without prejudice in this case as to i guess the sixty seven women the court before it goes to the court of appeals around number one because the court bars  were sexually harassed that it was not appropriately handled and they start bringing these things in and to the extent that at that point in the case they're trying to litigate them as individual claims and so rather than dismiss the claims she said individuals when they were little getting on their own behalf she would dismiss the case that the complaint the claim with prejudice but she would tell the e e o c you're barred from litigating this claim is claiming this claim and there were six or seven different categories of claims where she went through and said you can't do these six because they was never a complaint made to the to manage but you can't do these six because the conduct was wasn't severe enough to be sexual harassment and then she gets to the sixty seven and says you can't do these claims because you never investigated them or at the ciliated the investigated the claims and you haven't made any findings about the merits of the claims and you've put the court and the parties through years of litigation in that situation the the additional sanction of barring me from litigating the case is appropriate and i think that said i'm not going to stay the case unless you go back and do it or do a do over and she said it's a severe remedy that means these claims may not ever see the inside of a courtroom but she didn't use the with prejudice language at that point but the government understood what she meant what they complain in their brief appealing that order that they had that the order had barred these claims from ever seeing the inside of a court ruling that the judge acknowledge that fact they did that again in the second appeal from the eighth circuit and then most tellingly they follow rule sixty motion after mark mining is decided last year in which they asked the district judge to reopen the case and say you should done a stay you shouldn't have dismissed this and the reason you should do that is because we have been prevented for the last six years litigating these claims the judge read them say no it was dismissed without prejudice i wasn't telling you couldn't litigate these claims no she said i did what i did when i did it for good and sufficient reason because of the way he messed up this case and you abused the process and didn't follow your obligations and denying the motion  then appeal that to the court of appeals and the day before they file their merits brief in this court that they pull that appeal because they recognize that the rule sixty motion arguments they're making is completely inconsistent with the argument there about if i understand their motion did not say now we've satisfied on our preset requirements right so she might just have said well you still haven't satisfy your preset requirements so of course i'm not changing anything but a run of the recession is what would have happened if the government had come back and said we have satisfied the priests it requirements would she then have thought ok well that's a different story now i didn't i didn't dismiss these with prejudice now that the government has satisfied the priesthood requirements it can go ahead it's quite clear from what she did say last fall in december actually that that she knew it was with prejudice intended to be with prejudice and wasn't going to change her mind and i think there's no other way to read the record here and we ultimately have a judgment that says with prejudice which is the controlling judgment and there's a piece of paper called judgment somewhere it's sort of such you see if you look at the joint appendix first of all i'm a joint appendix your honor so there is a judgment that appears on page one all other claims asserted by the e e o c this case is dismissed with prejudice the end of it is not it was dismissed with prejudice that's the point you're under it's become seen to be any doubt about it and the government knew it it it actually agreed to this form of judgement so we find it rather remarkable that we were facing this this was just arguing for what's what are you asking us to do in this case what's the disposition that you're seeing where you should are we supposed to say circuits are wrong it has nothing to do ruling and then you know i think you should give the back of the hand to this idea that the judge will hear without prejudice and therefore that has some impact on this case it's just not factually true it was not preserved it is and it's not a it's not probably not the right law in any way then the  of these people and so when you dismiss the that count it's an express he says with respect to all the other claims asserted by the e e o c i think it's pretty obvious that the case is dismissed with prejudice with respect to all the claims asserted by the o c including the sixty seven claims that with them being litigated by the e e o c which did not include the claims that had previously been dismissed for failure to satisfy my requirements of the basic principle that a judgment at the end of america's phase goes back incorporates all the the prior rulings of the court and is based on the prior rulings in which i think that often are you know that's not right if the if the prior ruling was based on a curable dismissal and the e e o c had simply done nothing with respect to that set of claims neither cured it nor renounced the possibility that they would cuellar it in two thousand and thirteen the court was facing a much reduced set of claims and a different suit your honor i think that the judgment is going to go back and cover everything that happened in the case if there was something left that could be reopened with that that would have been dismissed without prejudice you would agree to a judgment in this form in any event that the government told the circuit twice in two separate appeals that these claims were dismissed with prejudice and that was a problem for them that they were precluded they file a rule sixty motion acknowledging that they were dismissed with prejudice asking for that dismissal to be lifted i just it's hard for me to believe that that there that this argument is available to them especially since they never made it before so why should we decide this i think you had only just remained it completely and let the eighth circuit decide or the district court decide what it met we should certainly decide the issue that was we brought you here which is the circuit conflict assuming we reverse why don't we leave it to the court below to decide whether they will in fact and change the government's new argument is there might be a waiver of that or whether there is a factual predicate for you could do they run i guess the main reasons you might want to release address it briefly is if you're going to go on and poll the government's lead and reach the christiansburg issue here which the government asked you to do in the at the end of their brief and decide that they want you to decide that the whatever positions they took on behalf of these sixty seven women who were not without foundation were not unreasonable we were actually in some ways tempted to ask you to go ahead and we rule on that issue too because we've been doing this in these issues now part that the government had prevailed on over there where there's a settlement that was certainly taken out so i don't think there's an argument about the amount here that of any significance so i do think that there's a maybe some value in the court reaching the christians british if only to instruct the c that there's a different difference between a pattern of practice class case where you have an actual policy or practice that you're litigating and a case where you just have a bunch of individual claims which you which don't add up to any kind of pattern or practice if you if you allow the e e o c to use class language like this it's kind of a club at the end of investigations that's not a class investigation in a complaint for which they have no factual basis then you end up creating a great deal of litigation exposure for defendants in situations where the class litigation really isn't appropriate mr smith do you think that's possible to have a pattern in practice appropriate class lamb with respect to sexual honor i think it would but it did it may be more difficult than in other contexts for example you could have a pattern of practice case i think about one work setting in which the hostile work environment would affect any woman working in that setting i think that would be appropriate if they had some specific policy that they identified that they said has a discriminatory effect such as for example we had a three strikes policy have to arrest people three times before we'll take the complaint or something like that that could be a pattern or practice case but which i don't think you can do is have one hundred fifty four are i think you can have a standard operating procedure that you should show by saying over and over again they don't do what they're supposed to do and that their policies are not taken seriously but you have to show a consistent pattern or practice in order to do that and  said is by and large that's not what they do they do exactly the opposite there may be some situations if we take the testimony of the complainant said at face value without any hearing from anybody else that word some of the managers didn't do a good as good a job as they might have and some of these cases but satisfy its present obligations can form the basis for an award of attorney's fees in your brief in opposition you argued that the circuit was correct did you not we did win or theater have you abandoned that argument we're advancing a slightly different argument that yields the same answer on the question presented  have you abandon the argument that there must be an evaluation of the merits we have met will make a slightly different argument yes you have abandoned that was the question well that's or no we have abandoned the eighth circuit view that you need a disposition merits but i think in explaining i don't think that the change in argument and the change argument to a different argument that still within the scope of the question presented constitutes a waiver i'd like to talk about two reasons why because i understand mr smith have argued that while waving the fees i take that to mean is the defendant can the defendant in such a case be a prevailing party yes i mean the standard yes i would think the answer is obviously yes they want ok so if they won why isn't that the end  yes i think first i want to talk about the broader question which is what makes a party a prevailing party because this court address that and it's a can a decision it said prevailing up party is a term of art in a few shipping statutes including title seven it means a party that has secured an order that materially alters the legal relationship between the parties and a plaintiff be applying the prevailing party i don't know the answer but i thought the plaintive brings a suit charging you know serious discrimination after lots of litigation the parties decide to settle and they settle on terms very favorable to the point really because of the litigation i thought in such cases the plaintive was the prevailing party am i wrong one hundred but can and it depends what this court said is that under buckhannon if the court the settlement agreement into a consent decree or the lower courts have held if the settlement agreement is approved by the ordering corporation to the judgment such that it's in force all by the court then yes but courts have generally said private settlement agreements or that particular issue in buckhannon if the defendant just voluntarily changes its conduct in the plaintiff gets what it wants the plaintiff is not a prevailing party because it has not secured an order that materially changes the parties legal way she cites a how is that the settlement agreements often take into account liability for attorneys fees portion those very often yes why do we apply the steam standard to a defended the plaintiff is seeking a change of the status quo but a defendant is actually all they want is the status quo they w just not to be found liable so why do we apply the question of whether there's been a legal change between the parties the defendant was never said seeking that so what the defendant was seeking though was a judicial declaration that essentially ratifies the status quo that ends the dispute and so after this court's decision in buckhannon the circuit have looked at this question and eight of them which we cite at page twenty six to twenty eight of our brief as far as we can tell every court to consider this question has said that the same will apply is to the defendant and that if the defendant gains a dismissal because the plaintiff voluntarily withdraws or because it's in the bank or arm or something like that something that allows the underlying dispute to continue then the defendant hasn't prevailed in the litigation in the sense in which the fee shifting statute have you i don't know where that ari where that artificial line comes from i mean if the defendant wants to win and i don't know it's getting pretty when i was practicing th parties didn't come in and say i want to win and i want to win on this ground and said i want to win and i want the case thrown out well i think that's that's right but i think that what the defendant wants and i think this is perhaps express the best of all the cases we cite in judge easterbrook opinion in the steel co case the defendant wants to win but the defendant wants to win in a way that definitively inn's the litigation and if the defendant wins on a ground that makes clear that the plaintiffs can come back to court the next day or in a different district or after satisfying a precondition to suit i don't think the defendant has won in the way that the defendant wants to w hen there's a material alteration in their relationship isn't not i mean it's not as big a one as the defendant would like the defendant would like to have a a when that precludes future litigation but don't you think a defendant  a dismissal of a complaint and therefore doesn't know whether the complaint is going to be filed again is going to celebrate isn't that a a an alteration in the relationship between the parties i'm sure that it would be happy about that in much the same way a party would be happy if they secured the reversal of a directed verdict on appeal or if they defeated a motion for summary judgment and you could in some sense of the word say that all of those things materially change the parties legal relationship because they settle certain issues and they alter the course of the future  chief justice that we're a defendant secures the end of a case dismissed goodbye you win now maybe they can bring another case tomorrow that's another case but they won this case it's going to be pretty hard for them to get attorney's fees anyway because there's a very tough standard but why isn't a simple rule the best rule if the case is over the defendant won he is the prevailing party for purposes of that case then we could go on to take all the things you want to do into account when we consider what kind of fee is reasonable and when we consider whether it's based on for of listeners i mean the the plus of that to me is the  simplicity and i don't see how it would work any unfairness or serious harm to the objective of this statute so i'd appreciate if you would address what could be by benighted view i wouldn't go that far but i do think it's a different view and a very different view than the one that all the courts of appeals that have considered well then they might i mean unfortunately i am in the position of having to decide it so i put the question to you and i'd say at first blush the simplicity of this approach it's consistency with the language ease of administration and so forth in terms of prevailing parties has that to recommend it so now what is you don't like it so tell me why so i think because when a defendant prevails on this sort of ground because the plaintiffs say withdraws the complaint voluntarily or secures a dismissal with prejudice the dispute really isn't over and it certainly isn't over in the sense that this court used the term in changed the legal relationship but what if they don't what if they don't come back the next day or what if they don't soon that's next district then it seems to me the purposes of this be shifting provision of not been served well i don't think that's quite right i think you're right honest question of alludes to i think the purpose of the few shifting statute in this is what the court said in fox versus vice in christiansburg is to protect defendants who are forced to bear factually or legally unjustified suits and i think first of all there's some reason to question whether that purpose is served where the reason why the those defendants can't recover for whatever fees they secure in resolving that initial procedural question doesn't really get at the core of what the statute was well are there because the idea is much you recommend with hussein saying at least if you come back t next day least if you can sue in another district and have you heard of the hot wheels and the mccoys route you see you bring them up because they're going to be fighting each other with thirty years and if you tell them they can't sue in this district they'll change the complaint slightly and go to a different district so if i adopt the standard good just suggest i will discover a whole host of questions is this really the same suit what about the possibility that they could have sued in as mania and what about the possible in you you see where i'm going and so i'm back again to that kind of concern and administrative concern us versus the simplicity of saying well that ended this case the but but just in the notion that if the store if our rule was going to cause problems of administration like you suggest you would expect to see it in the circuits and i don't think you're seeing at the circuits i think they're applying this rule has the plaintiff been barred from pursuing this claim permanently if so then the defendant is a prevailing party if not if it's a different ground if it's a precondition to suit if it's the wrong form if it's a dismissal without prejudice then the plaintiff hasn't been precluded i don't think you can hypothesize cases i don't think we've seen them in print mitchell an adequate response to your concern if fees were awarded solely on the ground in which the case was dismissed that would be in a way as the judge would have the discretion to do that if the judge looks at this and says ok it's clear you're in the wrong venue you know one hours of research would have showed you that and so you know it's frivolous on that ground and i'm throwing the case out because the defendant prevails on that ground now the defendant may have spent a lot of other money with depositions and everything  else but the judge could say well you can follow file the case again tomorrow you probably will you just have to go into the next district so i am going toward fees they're going to be equal to the amount of time the defendant had to spend defending against your frivolous venue assertion doesn't have to do that i mean you know if you have the wrong venue and they spend five years doing depositions because you have the wrong venue they should probably get fees for all of it but if it's just you know a small portion easily disposed of is that a possible remedy so i think that's a better more sensible rule certainly i'll say a little bit about why i think it may be a little tricky to fit into the doctrine of the just in to illustrate its application in this case for instance a petitioner got a feel already on the order of four point six four point seven million dollars as we explained in our brief the amount of those fees that are attributable to actually litigating about this round here whether or not we satisfy the pre conditions suit is a little more than one hundred thousand dollars well i mean that may be a case contrary to the proposal where it's that discrete in other words your frivolity on that particular point compelled them to incur four point six million dollars over many years but it's not their fault that that issue did come up until later in the litigation well if there is sort of intertwined with the marriage it's outset in this litigation i disagree a little bit with what mr smith said about what the e e o c looked into in suggest occasion but from the outset everyone knew that we had told them in conciliation we think you have a problem here we think you're engaged in sexual harassment against a class of women we try to conciliate that they declined to do that right i suppose whether the issue we're debating may not be directly part of my question is whether or not that could be a factor that the district courts could look at in deciding the amount of fees so on yes i take that point so if if  you resolve the question against as you say defend it could be a prevailing party when it prevails on the sort of ground that doesn't foreclose for the litigation that i absolutely agree with you that it would be perfectly appropriate and indeed i think a good idea for the district court to engage in this kind of inquiry but i guess i think the main it's a frivolous or an unreasonable suit the judge said you were barred from proceeding further in this case yes it doesn't say with pride or without us could fees be awarded in that case i believe you know i believe that's correct and i understand that in some cases i don't think this is such a case but in some cases that might have an appealing consequences well and that's in in a case like that what if the see after that dismiss goes back and looks at these cases and signs you know what we really have nothing here and therefore chooses not to bring to bring a case you would say that because the because the first case was dismissed without prejudice the writing on the wall and voluntarily recedes from the conduct and gives the plaintiff exactly what they want i think the court recognized that there's a really strong policy argument for allowing courts to award fees to plaintiffs in that case because they're doing what title seven and the civil rights act it's intended encouraged to do and they're sort of left you know out of pocket for all of the fees if they're not eligible for a few awards but this court still said they're not entitled to get a few words because they haven't secured a court order that materially alters the party's legal relationship and i think the same thing is true of the sympathetic i guess i just don't see what functional sense that makes if if the defendant has wasted a huge amount of litigation resources incur caused the i'm sorry in the plaintiff as has caused imposed a great unjustified burden on the defendant on all of it i don't see why is it as a functional matter unless this is foreclosed by a prior decision there shouldn't be a possibility of fees in that situation well i do think it's pretty close to foreclosed by but can't obviously  without a plaintiff is prevailing argument is that the courts rationale was prevailing party is a legal term of art it means a party that secured a material alteration the legal relationship of the parties and the court in buckhannon stuck to that despite a very strong policy argument saying that those sorts of plaintiffs ought to get the awards and i think it ought to do the same thing here when it's presented with essentially the congress then what is the argument i take it your argument now is what's sauce from the goose is sauce from again the canon says that a point of can't recover even if you litigates to death and they find give up and pay him a billion dollars unless there is a judicially sanctioned change in legal relationship he can't cover fees and if he can't recover why should the defendant recover unless there is a judicially sanctioned change in legal relationships and the only candidate for such a thing is a dismissal with prejudice of some form yes  that's the argument and that argument is correct why don't we have the situation here because you heard the judgment being read it says with prejudice yes so there's two judgments in this case the one that's entered after the district court resolves the issue that's before you now the sixty seven claims that are before you now is found at pages two sixteen to two seventeen of the petition appendix and what the district court says is the u s c is asked me to stay this because it's go conciliate i'm not going to do that i'm going to dismiss instead and it drops a footnote is a few pages earlier on pages two thirteen to fourteen and it cites another case that dismissed a claim under the same circumstances that earlier case the district court cited as precedent for the dismissal was express without prejudice the district court then goes on to say and this is language that you've referred to justice kennedy that the e e o c is barred from for the litigation on the claims but it says barred from further litigation in this case it cannot pursue relief in the trial in this case and i think most importantly when the district court says it's dismissing and then when it alternately enters a judgment of dismissal it does not specify that the judgment is with prejudice and we actually have a federal rule of civil procedure rule forty one b that is particularly designed to address the situation to ensure that parties and courts don't have to engage in the kind of inquiry that mr smith was engaged in in the first half of the argument of trying to figure out what did the judge mean what are the parties think that the judge means this is will forty one b is it page seventeen a the petition appendix and it says an involuntary dismissal it establishes at the fall it says ordinarily if you have an involuntary dismissal by the court in less the court specifies otherwise it operates as an adjudication on the merits ordinarily dismissal with prejudice now so what you're saying is in the judge said they cannot proceed again in this case they cannot seek relief on behalf of the sixty seven women in this case and why why isn't that prevailing why aren't they prevail and what that they may not prevail in another case or what do you back to court yeah i guess what do you think the significance of mark mining is on this issue so our view is that mark mining suggests that this issue shouldn't come up again in future cases as we read mining it suggest that the appropriate remedy for a failure didn't it was frivolous for them to bring the suit without conciliation you know if somebody said well we've got to conciliate there's no forget about it go ahead why wouldn't fees be a perfectly appropriate sanction in other words there's no under some sense there's no incentive for them conciliate because if it turns out they didn't they have to go conciliate but if they were subject to fees because they ignored their duty to conciliate it seems to me that might give them some incentive to get it right the first time so i think i'd  premise i think and we explain our brief the e e o c has a great incentive to conciliate because it gets a massive number of complaints each year or charges each year it finds reasonable cause to believe that there's been a violation of title seven and a huge number of cases as very limited resources so it really does try and hypothesis unreasonably fails to satisfy its conciliation obligation and the court finds that to be the case and it stays pursuant to mock mining and since i'm off to conciliate could the court award fees i take the question i think the answer is it couldn't do it under this provision because everyone agrees that you have to be a prevailing party to get fees under this provision i don't think even mr smith would argue that if all the defendant gets a stay the defendant has prevailed now our view is that a dismissal without prejudice tell our conciliation and then the potential for coming back to court isn't that different from a state to allow for mention that the district court didn't consider this a dismissal with prejudice when it announced in this very decision you're pointing to put that the petitioner was a prevailing portie entitled to attorneys for years at the end of the case it's certainly the district court it was imposing a sanction it was bar you from trying these cases at least at this trial at least at this trial i agree with that and the district court did say in that same order that that made petition or prevailing party it didn't explain what test it was applying and it certainly didn't say the action even according to this order by the court would happen at the end of the case and at the end of this case we had a dismissal with prejudice one with think that everything with it merged into the final judgement so i  disagree with that that you're talking about the dismissal ultimately entered after me man in two thousand and thirteen i do want to talk about that but first i think it's helpful to just sort of tie down the two thousand and nine dismissal originally and just to wrap up the point it's that under rule forty one if you have  dismissal that's for lack of jurisdiction that doesn't count as an adjudication on the merits it's not with prejudice and in this court's decision and costello which courts have followed ever since jurisdiction there doesn't need jurisdiction in the sense of jurisdiction over the person or the subject matter it also includes a pre judgment the that is actually entered is i think not in the joint appendix but it's where do i find it so you you find it at documentary number two seventy nine on the district court's docket what does it say it says decision by the court this can trial or hearing which says a dismissal in voluntarily if ordinarily operates is an adjudication that prejudice on the merits were not supreme with that as to the claims on which the district court passed on the merits and concluded that we didn't have enough evidence to survive a motion for s three exceptions lack of jurisdiction improper venue or failure to join a party yes it was not there you did join a party yes it is not improper venue yes i don't think it's lack of your restriction is that what it is lack of jurisdiction it's exactly that because in this court's decision in costello the court said jurisdiction in google forty one doesn't mean lack of jurisdiction over the pardons it also includes failure to satisfy a precondition to bringing suit in castello that particular precondition was the failure to file started which is whether you've waived all of this and you know you point out that the question presented includes your argument but clearly it is as you say a different argument from the one you litigated below both in the district court and in the circuit court yes and in the bio that you filed here and mr smith has responded to this new argument in less than a page which is really has every right to do given that it has sort of sprung from your head at this late date and i'm wondering why we shouldn't just ignore the whole thing so i think to address it separately first of all as to why it wasn't raised below below this court both parties litigated this case on the understanding that it was governed by circuit precedent established by an eighth circuit decision called marquardt that made clear you know you can always file a footnote you know well that's true but i guess that that argument doesn't give mr smith much good because he didn't make that argument either he challenge me on in the eighth circuit they didn't even do it in their petition for rehearing on bach now we haven't argued that they waived it because we think it was within their rights to stay within the confines of circuit precedent and then to make a broader argument on the same legal question once they're in this court but we think we have an equal right to refine our arguments once we're free from the constraints of what is the suppose i should know but i mean what is the general practice i mean we kind of futile to go before the eighth circuit and say we think you should overrule your precedent at least in the panel decision but that doesn't mean they're not free to raise the argument here that this is where where you should go if you want a court of appeals ruled i'm salute the and as i'm saying i don't fault mr smith for not raising the challenging the on the merits rule i'm just saying that there's a good reason why we w considering a different argument or considering how we might respond to a challenge that rule because it just wasn't raised by either party both parties sort of litigated within the confines of a circuit precedent now that also leaves the brief in opposition justice kagan which you also asked about and they're you're right we didn't raise this argument circus decision in part frankly obviously if we had it to do over again we present the argument that we presented in our merits brief but i think it's important to go back and look at the petition the petition doesn't really develop a developed argument on this point either it doesn't cite but can and it doesn't make an extended argument about what it means to be a trailing party it mostly focuses on search or i considerations and we did the same thing in our brief in opposition i think this court's argument are cases about when you waive an argument by feel and can to include it on in the op are focused on cases where the argument is about why the question presented isn't really presented by there's a bar to reaching it and that's not what this article was regardless of whether there's blame on either part we're still in a situation where it really has not been briefed by one party and it hasn't is christian berg that seems even worse i mean nobody's thought about that it seems to be a complicated factual scenario you know there are circumstances in which you could proceed with a class properly and circumstances in which you couldn't and we know nothing about whether this is the circumstances one or the other well you don't you certainly don't have to resolve it on the merits but i think all you need to do is to say it was not unreasonable for us to think that we had done it here and i think the way that you know that is because judge murphy in a very persuasive dissent concluded that we were not only reasonable but correct in thinking that we satisfied our obligations and also because not even petitioner is defending the diff the rule that the just report applied the district court said you cannot conciliate a claim on a class wide basis you have to conciliate on behalf of each and every one of the sixty seven individuals that's there will be a certain applied that's the rule judge murphy criticised and petitioner doesn't defend it well petitioner says instead is that this was all fine as long as we had a p of practice theory and it only became not fine when we lost on summary judgment on the part of the practice issue but i don't think back our conciliation can become inadequate only when we need a summary judgment motion thank you counsel mr smith you have three minutes remaining goes on to talk about this other more complicated stuff about legal relationships if one is talking about things plaintiffs win short of a judgment but there's nothing in the can in that says a judgment can't be treated as a basis for a prevailing party now to the extent it matters what the nature of the dismiss here was and i don't know that it should but it does point out that any uncertainty about the nature of the dismissal here with arises from the fact that the government never made any argument in the courts below that the distinction made any difference and indeed it contradicted the very point it's now making said to the eighth circuit and this is on page eleven in our reply brief in the footnote he said quote the court recognized dismissal as a severe remedy and acknowledged it would result in dozens of potentially meritorious sexual harassment claims never seeing the inside of a courtroom to the main maybe we would know this is i'm reading their quote from their brief where they left out the word may because they thought that it didn't make a difference that they knew at the time and understood or at least believed she was referring to the fact that these individual women might be able to litigate their own claims but they recognized over and over again in the courts below that the may didn't mean that the e e o c could come back and litigate that they were plain precluded that's why they filed the rule sixty motion five years later no to the extent there was an argument that we shouldn't get all the species we should maybe get a little bit of fees because we should've raised the issue early on the problem here precisely was the class action the two are tied together and they were both judge reed found frivolous the argument that there was a pattern a practice here and then the argument that they could go on to litigate on behalf of the individuals once the class action washed out their put their part of a package a class claim the court so held in general telephone she cites the case i don't know that the judge was intending to second guess this court's decision in general telephone about how pattern practice cases are litigated the question is where you don't have any kind of a policy or or standard operating procedure you have a handful of individual stories or maybe a large number of individual stories how do you conciliate those and you know the answer she gave was you have to conciliate them one by one just for your bypassing the statutory procedure when it would be your when they've won a judgment and prevailed and where the it doesn't matter with or with approach i would i would think that you know that that should not be in the rule that that ought to be something within the discretion of the district judge for a lot of the reasons we've been discussing here and where reason why you would want to add additional constraints thank you roger thank you counsel cases submitted