assistant attorney general baron cunningham for the state of connecticut your honour's opposing counsel and may please the court during the course of the settlement agreement entered into by the parties class counsel filed many motions seeking relief from the district court none prevailed most notably the classes motion seeking to find connecticut in substantial noncompliance with the settlement agreement this court affirmed the denial of that motion even under the delaware valley case it was clear error toward class counsel nearly half a million dollars in additional attorney's fees in my limited time and given the in number of issues raised in this longstanding appeal i would like to begin by explaining why even if delaware valley applies the district courts award which increased the recommended ruling by some forty five percent should be reversed as to two categories of work delaware valley holds that post decision activities that are useful and of a type ordinarily necessary or ordinarily necessary to secure the final result obtained from the litigation are compensable in the case of a statutory fiord i'd first like to talk about the time spent pre settlement that the dish a court ordered one hundred twelve hours and again this was contrary to the recommended and judge shot me awarded this time and believe we believe that was legal error and specifically this was time from june of two thousand and one until march of two thousand and two when the settlement agreement was signed the settlement agreement itself contained a provision awarding class council six hundred seventy five thousand dollars and the settlement agreement made it clear that this was the total agreement between the parties our contention is that there could be no fees up until this time because the award of the six hundred  seventy five thousand dollars in fees covered this time period your so your argument is that the settlement agreement itself is playing on its face and up until the date that it signed the award was six hundred seventy five dollars you can't get anything more for any period for that earlier period yes judge livingston and especially if you delve into it what was done during that time again counsel filed motions arguing that they case had already been settled there was a big disagreement about what had occurred in the settlement to go she asians but the two award time for that again the motion was denied the motion itself was denied by the district court and again we think that this time should not have been compensated chimey specifically denied time during the denied hours during this time period but he differentiated this period of work and concluded that it should be compensated and we believe that this time period is very clearly covered in the settlement agreement because it was signed after that time it was the total agreement of the of the forty five dollars under the hourly rate that the district court awarded that we did not appeal secondly we would argue that the two hundred forty hours the district court awarded but the magistrate did not recommend awarding for the unsuccessful motions for substantial noncompliance should not have been compensated and in this case delaware valley should not be used to compensate for losing which is exactly what occurred counsel filed motions taking to find the statement substantial noncompliance we tried the case over a three week period in june of two thousand and ten the district court denied any relief dischord affirmed toward two hundred forty hours for that work is an affront to the settlement agreement and also to metric had had become the second most inclusive state in the country and he specifically also credited the state department education staff for their work on the settlement agreement and it came just a few months before the jurisdiction of the court ended under the settlement agreement so i don't see how a trial that spoke to what had occurred over the all the previous eight years and was unsuccessful could have possibly been useful calculated risk by class counsel as in any fee shifting litigation if you decide to bring a case and you lose you don't get compensated if you bring a case and you win you get compensated there can be no question that if we were standing here today and we lost the motion that counsel could be compensated for their work but we didn't we won and yet we still have to pay and if you look at our brief the state of connecticut spent four point four million dollars implementing the settlement agreement plus the state of connecticut paid for the expert advisory panel and as i can hopefully discussed later in my argument it's the expert advisory panel that were the monitors in this case and not class counsel the settlement agreement itself specifically gave the expert advisory panel a rule of monitoring it was not counsel and to your point judge livingston if class council wanted to act as monitors or bring actions which they did they brought over some thirty motions that were all denied they were free to do that but they shouldn't lose and force the state of connecticut to pay on top of what we've already paid to settle the case and that's the framework of o there are other categories of work that the district court awarded that also the recommended ruling awarded and those were responding to the e a p reports which was not spelled out in the settlement agreement the district court in the recommended ruling gave one hundred  fifty one hours of time for this and on this point we would argue that the delaware valley case even if it applies should not be used to rewrite the settlement agreement the district court of magistrate specifically noted that class counsel exceeded the settlement agreement on this point but said that it was still useful it was useful and of a type ordinarily necessary to secure the final result the problem here the settlement agreement is a pretty short document and it doesn't really tell us very much about what role class council is supposed to play it does seem to contemplate that information the class is going to continue to receive information and some assessment of whether there's compliance is put in the hands of the class i think that's fair but it doesn't say anything about what the class c is supposed to be doing yeah i suppose that's true your honor and we would say that that should be as judge posner discussed the alliance case we we would say that that works to our benefit because it was not a role that class council you know was either ethically bound to do or otherwise bound to do and i think the problem is that when you have the settlement agreements and this court has already ruled in this case in other cases that there had to be treated as contract principals you say on the one hand that we're only bound to what the settlement agreement requires but then you turn around and award  fees for work done outside the scope of the settlement agreement it really isn't fair to the state of connecticut and this is why and i hope to get to this later margaret why we think the delaware valley case which this court really hasn't applied in in the twenty two times that it cited it it's really sort of unworkable and in this framework having said that we did not oppose the hourly fees assuming that counsel can get any fees that they got for work that they did specifically under the s agreement to your point judge livingston which is the selection the a p itself there were some fees awarded for that that specifically spelled out and sell an agreement and assuming counsel can get more fees we do not challenge that class council was also ordered two hundred hours for attending the e a p meetings just shiny reduce this slightly for meetings in which both council attended we explained very thoroughly in our brief there was really no role for council at these meetings and in fact the state of connecticut paid for one of the advocacy groups to have a member at these meetings so we really and this is a position that the state took throughout the entirety of the agreement and and made council aware that we did not believe they should be attending these meetings and finally assuming that c further fees we believe that it was improper to ward fifty seven point two hours for requiring that the state exceed its obligations under the settlement agreement with respect to the class list this is somewhat of a confusing issue but the long and the short of it is that council was very dissatisfied with what they were required to be given under the settlement agreement but we met our requirements under the settlement i understand that they wanted more and they felt they needed more in order to do what they thought their job was but the fact of the matter is under the four corners of the settlement agreement we met our obligations and in fact exceeded them at a later time even though we weren't required to do so and on that point i think it's important to note council in their brief make several statements about the fact that they were so critical to making the state of connecticut engage in certain activities i think that's belied by the district judge's decision on the merits where he credits the state employees he credits the designee under the settlement agreement for her efforts with regard to the settlement and i think very strong views about what should happen in the years going on in the settlement agreement but again we would argue that their their role was not paramount i don't so like to talk about our argument which is that we would like this court to adopt judge posner decision in alliances this circuit has not had a chance yet to weigh in on it we've talked about a little bit i think that this case really shows how difficult it is to apply delaware valley this court has only mentioned it like i said twenty two times it's a difficult in that case itself there was at least some victory of the parties in delaware valley and i think the canon case really forecloses as judge posner noted fees  case of this of this sort my right there were three circuits that disagree yes judge said you are right the eighth ninth and tenth circuits have specifically said challenge alliance and and agree with you it might be better it's a settlement agreement itself was more specific about the compensation of attorneys going forward and what things they would be compensated for not that we now have this agreement that seem to contemplate some ongoing role for the class if the rule was the class council will only be compensated for judicial wins doesn't that set up an adversarial relationship between the state and the class that is not beneficial to the success of the consent decree i mean other other agreements might be different but i'm sure this will remain in this agreement i think the record is very clear that class counsel chose to file motions respectfully rather than work with us i think the record is very clear about that with respect to the class list and the person identifiable information we get the u s department of education told us you cannot release this information to the class without violating for pa we went to class counsel and said would you like us to go through this laborious task of notifying the entire class and they filed a motion that was their response and an agreement like this certainly puts responsibility on the district court not to overcompensate for for litigation it's serving no end but and outright rule that the only thing you're compensated for is a win suggest to me sets aside any possibility of cooperation well i think that we would have cooperated because the settlement agreement in this case required that we provide existing data and other things to a class council and the record at the trial was very clear there was an exhibit that listed all the data and support and information we gave to class council class council would pick up the phone of an louise thompson the designee under the settlement agreement and they would have conversations all the time and i don't think this record shows that there was any difficulty in that respect but the record also shows that in the last three years of the settlement agreement that class council only had a right to existing data how could they possibly be monitors of the settlement agreement if all they could do in the last three years was get existing data and file a motion for substantial noncompliance it just does not make any sense that they would be considered monitors under this agreement your honor in the time i have remaining i would just like to discuss briefly the settlement agreement self warning six hundred seventy five thousand dollars to class counsel we talked a little bit about this again our view is that and this is been throughout the case our view from when this case was settled the two thousand and two forward has been that the law is very clear since but can and that unless counsel received a judgment against the state of connecticut a substantive judgment there could be no further fees that's been our position the entire time the state of connecticut if you look back at the record attorney general handled this case he feared we would be in the situation where class counsel would file these motions motion after motion seeking fees and respectfully i think that this case shows that class counsel use this case as a fee generating vehicle and with that your are i've reserved time for a bottle thank you this agreement was set up so that the various parties were to work collaboratively and the e a p was to have an important function for the last three years they were to collect data they would analyze it make recommendations and resolve disputes and then the defendants for no apparent reason without discussing with us fired them so for the last three years of the agreement there was no dispute resolution no one to collect and analyze data no one to make recommendations this put us in a position where we had to act it seems to me we had a duty to do something and out of the settlement agreement the only thing we could do is file a motion for substantial noncompliance and that's what we did in with that we tried to get the and we were successful on a number of motions first of all we forced the defendants when they admitted that they could not answer our questions about what the initial p c i database of students were floating in and out of the data and they were taking into account the reclassified students who they were supposed to take into account and the state said they couldn't answer in iraq couldn't answer our questions so they developed this they asked the court for more time and they developed a longitudinal database which took into account all students moreover they for the first time the court entered an order that appointed the e a p as technical advisor and with that they ordered the defendants to produce any analysis they had and all the backup data and they were produced copies of that to us as a result of that order we received the defendant's analysis of progress under the settlement agreement so first one we got had in three years we received defendants analysis of progress they took into account all the class members and there's a first time that i think you're getting this information and making the request for it pursuant to remind remind me if i'm misremembering the settlement agreement pursuant to a provision in the agreement that said that during this period the defendant has to comply with your reasonable request to provide information so you can assess compliance correct so you've got the information and then you made a motion eventually culminating in a motion for substantial noncompliance but you weren't successful on that motion so i'm having difficulty seeing why at least as to that part the magistrate judge wasn't correct in saying that that shouldn't be within the compensation discharge was discharged and again the only thing we could do is file a motion for substantial noncompliance the defendants had conducted at complete analysis of progress out of the settlement agreement and refused to disclose to that in deposition claiming privilege as a result of that water that analysis was produced for the first time moreover the e a p was appointed technical advisor and they wrote a report for the first time in three years and again all of this is important in terms of production of that in terms of finding what had happened whether there was progress or not part progress under the decree and we believe we had a duty to do that otherwise during the last three years of the agreement there was really nothing we could do so we felt we had a duty once the defense fired the e a p we had and we had an obligation to do this litigation and we did force the defendants to produce reliable data appeal follows an award of fees for monitoring by the district court defendants argue that no fees no fee should have been awarded defendants are asking that this court fundamentally alter the way monitoring fees are awarded in this circuit and civil rights cases defendants argue that no monitoring fees can be awarded unless a plane of secure a court order is except especially the one part of the holding that says that measures necessary to enforce a remedy ordered by the court cannot be divorced from the matters on which plaintiffs prevailed in securing the consent decree your adversary's argument as i understand it is that you can and fundamentally changes how we should be reading delaware valley and it is the case that so far as i've been able to tell this circuit has not grappled with that question we haven't looked at the two cases together and discuss the did force plane is to secure an alteration in the legal relationship at every stage during the remedial phase and it also indicated that the presumption favoring field wards  housing commission vs new york city to grapple with these issues with again we met we discussed this case in our brief compensatory compressibility doesn't turn on whether plaintiffs won a particular post judgment motion but on whether the matters were in intertwined with the original claims and also i know the denying fees for the monitoring work would obviously throw it dropped forty underlying purpose of section  miner this is exactly the situation and i think it's difficult to know what the solution is but you can and similar cases to express you know view that in these cases we're not supposed to have an entire second litigation over attorney's fees doesn't seem to have been born out here in some way i mean as i'm looking at the record this this litigation seems to have been going on for some seven years and the case settled fifteen years judge and i do agree that the litigation of fees it is the policy of the litigation of for fees is it is appears not supposed to turn into a second major litigation on the other hand there are legal issues which the state has decided to pursue and for example lists the state's argument that a lot that discourse should follow alliance  alliance is an outlier there's no other court that's accepted that and the state is asking you to adopt alliance and follow it to resolve this case alliance hasn't into we asked for fees during that period because the state took actions the magistrate found  the state took actions really in violation of instructions from the united states magistrate who was overseeing these negotiations and plaintiffs and they inserted section ten into the agreement  they went and submitted this to the legislature and we found out after legislator and approved it that in fact the section ten had been inserted by the state without notice to us this is after the negotiations were complete so as judge shot he said we had two choices we either had to accept a deal that we never agreed to or we had to fight them and so we filed did file a series of motions and litigated him before judge shot me in the magistra several occasions if we had not done this as judge shot and he said if we had not litigated the settlement agreement would've been scuttled so what we did  corning to the judge is we saved the agreement by litigating this we came up with the side letter which provided the parties joint interpretation of what section ten men now under the and the court said the fees were awarded under delaware valley this court in samba night us has awarded fees in a certain a very similar situation it was prejudgment and it was working on unsuccessful of defense counsel as a magistrate judge pointed out the both sides negotiated during this period they were as i look at the record they may have been proposals by the state that you would have a set annual compensation you didn't agree to that you end up with the side agreement that ultimately the settlement agreement that is then intervention says that council will get a one time payment of six hundred seventy five thousand dollars and that would seem to me to encompass the period before th i'd like to address skip over most of say and deal with a couple of points first the question that opposing counsel raises in his brief that with our work was of no benefit achieved nothing as dr sailor indicated in his affidavit and as the magistrate judge foun c i database if you look at the dock in numbers four ninety five four ninety six we forced the production of the p c i data which defendants refused to produce for the first  three and a half years of the agreement and we forced the defendants to produce longitudinal data base when after they concluded they could not answer our discovery about floaters and about all these deficiencies in the p c i database so they did ask for an extension of time from the court and they went out and they developed this longitudinal data base and produced it in january of two thousand and eight and analyses which certainly were beneficial to the class and the court in trying to resolve our motion for substantial noncompliance alleging that defendants were not living up to their obligations under the settlement agreement  with respect to the argument that plane has spent time compelling work that went beyond the four corners was mentioned by mr cunningham that's certainly not true much of our advocacy when you look at it focused on the issue of the adequacy of the class list if you look at the a dent them to our brief what they produced what the state produced in the report were thirty two character numbers we have an obligation to represent the class and that we weren't being told who the class numbers were or weren't we were really weren't being given any baseline  data on the students are changes from baseline data that we were supposed to get to implement and enforce the settlement agreement what did you eventually when information that you eventually get on ventur after we went through the forced them to produce the p c i database and and we had all kinds of problems with floaters efficiency we wound up with c we filed another motion and as i mentioned they produced the what's called the longitudinal database that was the database that involved not only the class members but also the reclassified class members and we had made it was that that of relating to that was reliable and the court found that so that was wh we wound up with and we're did you get names now what we got was data and act accurately portrayed the progress that was being made in the case yes thank you are just very briefly i would just want to talk about some of these points and and hopefully i can shed some light on them i just like to start with the district court's finding the district court said that the court has no doubt that ms thompson and her colleagues at the department who testified during the evidentiary hearing embraced the goals of the agreement were committed to achieving the goals and consistently made good faith efforts to try to meet them and his thompson specifically testified at the hearing i'm sorry he said that she found that class counsel was very difficult but that she felt that they were not working together she testified to this under oath and i just want to also address this court has already spoken about a lot of the discovery issues in its in its previous decision from five years ago no judgments it was on that panel and i would just say that the court has already addressed this issue of discovery and what discovery rights the class had and found for us on that point with respect to launch to know that a base i just want to be clear that it wasn't first of all it wasn't required under the settlement agreement let me just explain that the settlement agreement had five specific goals and they required the state to annually provide information on students identified as in only intellectually disabled which is previously known as mill retardation the state did that there's no question what happened though was and i should point out the class when they originally filed this case is the there was an over identification of such students and as connecticut made progress in this case and under the settlement agreement the districts which do the classification reclassified numbers of students so what happened was when the snapshots from each year we complied with we gave a list of the students if a student was reclassified they no longer had intellectual disability or mental patients and they did not appear on the annual turnover of data class counsel didn't like this but that's what the settlement agreement required notwithstanding this and not because of class counsel importantly the state department of education desired to move to a system where they could track students over time the record is clear that the the state could not do this at the time the settlement agreement they made that clear class counsel everyone knew it and that they move towards doing that but the fact that it occurred because of class counsel is be led by the record and not true in one of the states reports to the expert advisory panel and the court they indicated that they were lurking on a longitudinal database once again class counsel didn't like this progress and then filed a motion but we were already working on it we did work on it and perhaps most importantly the district court denied any