and in the secretary's view and that's whether rule fifty four the rules of the federals of civil procedure means what it says when it says that the mandatory fourteen day deadline for requesting fees is triggered by any order from which an appeal lies court may disagree but i think the issues raised in this case are well briefed by both its and so i would like to just highlight a few points made in the briefing and then focus on answering any questions the core may have that if any of the members of the panel feel that we're not adequately addressed by the briefing both that there will be a claim and an s at least a fair estimate of its amount so that the admin adversary can take that information into account when deciding whether or not to appeal complying with rule fifty four as deadline sole did not involve interpretation rule fifty four dollars and they observation few requests is premature at that stage can be reconciled with the language of rule fifty four in particular the rule has a provision that says a court can order otherwise the rule the advisory committee no it's also referred to is situations where a court may want to defer ruling what  would be the reason for deferring a ruling it might be because the issue is premature at that stage but what the rule clearly contemplates is giving an adversary fair in all of this of a few requests that a few requests is going to be made tied to a tied to an appeal order and at least a fair estimate of the model so that the party can take that information into account before the time for appeal is expired the rd point  if the language of this rule is so clear why are there so few reported cases that address the issue raised in this appeal well i suggest that there's the reason for that is that usually  party an adversary who is not given notice of the timely fear requests can't show prejudice and there's four categories of cases where that would be the case i believe the st would be those cases where  obviously not prejudiced by not having that information it's like life that the only type of prejudice that's the only type of prejudice based on your bretheren was just knowledge before the deadline for filing a notice appeal is that the sole nature of the prejudice to your search yes your honor that is the prejudice that coupled with the fact that the secretary made a decision to improve the law consistent with the public policy recognized in the supreme court's decision in the canon for basically rejecting a catalyst theory so that we don't want to chill these public officials from pursuing positive changes in the law not withstanding existing litigation the rd type of case where there would not be prejudice as those cases where there is no intervening change in the law that much the issues raised in a plum an injunction and then i think the vast majority of cases where there would not be prejudice is where cases are resolved by including a request for fetus by a global settlement or a consent decree that wraps up the issue of fees within the global settlement but this case does not fall into any of those categories in this case the secretary did choose to improve the law without notice that there was going to be zero not only a few requests but one  complaint and i don't want to minimize that that may have required some work but it was the filing the complaint responding to a motion to dismiss and filing a motion for plummer injunction and certainly  neglect well i don't think i think the uncertainty is in the practice your honor and i think that's driven again by the fact that there are so much already cases want to involve a showing of prejudice i  what it says and in this case the presence of prejudice to the secretary jager after he was not given notice within the time for appeal and then chose the path forward that he did clearly prejudiced and wants on timely requests was was brought over a year and a half later how do you factor in the committee notes that referred to final judgment your honor the to the extent that the committee notes and this was in our briefs to the extent that the committee that one reference i think that they the plaintiffs rely upon to final judgment is inconsistent with the rule itself the case public officials to improve the law itself fair of explore the fear requests even though i believe in the status quo may not be illegal or unconstitutional and balanced against that the competing interest is the the interest that the public policy that favors awarding fees to prevailing party but in this case favoring the latter over the former would require the court to conclude that that policy favors favoring few words also justifies excus party from complying with the clear dick takes rule fifty four dollars so our position be that public official should not be chilled by the threat of attorney fees for seeking positive changes to law in the middle of litigation as recognized in buchanan and then i'd like to reserve the remaining of my time for rebuttal you know you said at one point there are four reasons why you think there's not much case law right caught three of them well is your  district court and i want to start with two things briefly that are not in just butte st the plaintiffs are prevailing parties and title two attorneys fees and nd that the district court determines the appropriate amounts of attorney's fees neither of those decisions has that appeal that leaves only the motions timeliness and the plaintiff's motion was toy we know that because the advisory committee explained that such a motion is due to fourteen days after final judgment that it is that's your best argument then we'd have to disregard the text of the rule in favor of the note and that seems counter to pretty well established authority that the rule trumps no well i let me speak briefly to the authority that the secretary offers for the fact that the rule itself completely trumps he cites this carcase out of the th circuit but what that court was saying is that when there are two contrary interpretations of the committee that the court adopts the one that is consistent with the rule it didn't say that you disregard the committee in fact the u s supreme court has called this work on multiple occasions has said that the rule is a reliable source of insight into the meaning i'm sorry that the committee it's a reliable source of insight into the meaning of the rule here you don't have committee you know then makes repeated references to finality so it's not just that one statement the committee note threw out cause of plates final judgment more importantly we look to the purpose of rule fifty four dollars writ large rule fifty four dollars writ large the purpose of the rule is to avoid the piecemeal determination of litigation and the secretar secretary suggests entry of judgment is not merely entry and the word judgment entry of judgment is itself a term of art in the federal rules and one that  contemplates final judgment and the fact that almost no one makes this argument and when the argument gets made courts unanimously said that final judgment is what triggers rule fifty four i think this is pers waste of evidence that at least there is ambiguity in the rule and arguably that our interpretation is the better interpretation of the room and the ambiguity is that the phrase entry of judgment might refer only to final judgments even though the judgment is defined in the room to include non final orders yes and let me offer an another example of this that that they win at final judgment with the sweepin everything that came before it is inconsistent with his suggestion that a motion nevertheless needs to be filed as a make work place holder even when it cannot be determined and and the other argument within the text of rule fifty four that's important is that the deadline is not the only operative part at the preliminary injunction stage we were not entitle to attorneys fees we were not prevailing parties yet we only became the prevailing parties when the secretary took action to boot litigation and then just record dissolve the injunction on those grounds so this interpretation would allow d that would require parties to make motions that they cannot prove and that a district decide in order to serve a notice function that is one of the goals of fifty four d now the secretary repeatedly says that this notice function is at the preliminary injunction state and the motion itself is unripe so at best the court can set aside or deny it without prejudice then the appeal that he says he might have sought could not have resolved d both of those issues now when you have two goals within set forth within the rule both of which can be encompassed by one interpretation of the  the attorneys fees motion and the merits motions resolved at the same talk why why wouldn't this rule work past if the motions were filed within fourteen days to serve the notice function  with a request to defer ruling by women that serve all functions why isn't that the most practical way to apply this rule that that is one way to apply the rule and the case about the estimated thieves in that case which is the notice function the secretary says he's entitled to in fact a motion to delay the deadline would necessarily require that  with requiring parties to file motions for which they cannot make the legal show and which the court cannot grant there there is just sort of a great work aspect to that but i think that that  process also speaks to the question of excusable but glad to hear on because even if the secretary's interpretation is the better interpretation of the rule it is an interpretation no court has ever enforced authorize war to fees you may know that's right in the in the so ok so it must be happening somewhere if the supreme court's talking about it but let's get to more important point with your time running out which is simply this yes i i thought reading all this boy the easy way around this is is of course the big the excusable neglect angle but goodness gracious the district court does one sentence we have cases that say that there are four factors to consider you know where i'm going with this  this court can affirm on any grounds supported by the record so even if the district court had not mentioned excusable neglect all this court could have affirmed on that grounds the record although the district court doesn't articulate this in that sense the record shows that the plaintiffs i mean i'm sorry that the secretary didn't cite any of the word he directly in support of his interpretation while contrary authority exists to that the plaintiffs could have it didn't rely on and the secretary put no evidence whatsoever of the prejudice that he suggests he says that the secretary that this is the reason the secretary chose not to appeal but he answered no evidence to that effect in the representations of counsel in particular so serving representations of counsel are not evidence for this court the fact is the district court on that st preliminary injunction kick them around said that they submitted no evidence whatsoever in support of their statute which is true and that their statute had no fail state which is true it was patently unconstitutional and the secretary chose not to appeal it now for him to come back now and say well the reason we didn't appeal it is we didn't think you were going to come for attorney's fees what our complaint said we're coming after you for attorney species is not something that this court can rely on to find prejudice i don't understand you clearly there are no affidavit is attached to anything and the district court will say about this issue none whatsoever what's a distinction between representations of counsel and self serving representations comes up as an attorney i would say i would never enter a self serving group but here again on one side you have a statute that had already disenfranchised thousands of north dakota voters with absolutely no failsafe that a court had unquestionably found to be unconstitutional and that the secretary did not appeal now we have a voting rights statute that says what a plaintiff brings such a claim they can recover attorney's fees and you have fees a motion that was made consistent with the only case law we have on this question the other competing notice is to say that the secretary should not have to pay for this mistake that he may and should end while four hundred thousand dollars sounds like a lot of money and it certainly is to plaintiffs who have to bring this sort of litigation which requires extensive expert reports the types of claims we brought are by their nature extensive claims that the secretary should be spared from spending th one thousand of one percent of the state budget to cover his mistake the commuting public policy there i think clearly favors vindicating what the boaters spent to defend their right  already addressed and in this the secretary's reply brief just like to to cover a few highlights again number one the language of rule fifty four  was only a final judgment that triggered the deadline then the rule could just say that the deadline is triggered by a final judgment it doesn't say that it says the it's triggered by any order from w argument about the magic of the word entry of judgment as referring only to a final judgment there's nothing unique about the word entry that links it to a final judgment disc or and we cited the number of examples in our reply brief of situations where the word entry is also tied to an order and here we have a final appeal border with respect to the entitlement argument that there that they couldn't bring the their claim until it was conclusively determined or make it make satisfy the notice requirement of the rule and tell it was conclusively determine that they were doesn't have to wait until it's to clue conclusively determine before they can make their fee request and the absurdity of that position is it is best illustrated by all the situations where whether the status of prevailing party and the fear request are addressed at simultaneously in the same in the same motion the argument that this would just make or practice by requiring us no it serves an important function it gives as judge ca pointed out the best way to view this is the party can comply with rule th clear mandate give the adversary notice and then request the deferred ruling and if that happens and if they don't disclose the amount of the few requests in response to that request for deferred ruling an adversary could say ok we don't object to that we agree that it's premature to decide at this this point but court at least require them to give us a fair estimate of the amount that they're going to claim and then the adversary be on notice that a few requests is going to be made i'm not aware of any cases it's  regular practice justifies not complying with the plain language of that rule and if you look at the two cases the doll guard case something solid dated paving case than alice in those cases is see that my time is expired i would have asked the court to reverse the district court because the secretary was prejudice by the end timely few requests that was made in this case