honor me please the court i'm armand derfner from charleston south carolina i represent the appellant sudo in this case i'm proud to be here with my lead counsel patricia harrison who has spent twelve years in dedicated representation of miss doane in case we know that we can't just come and say we disagree with the district court so in the comments i'm going to make we're not going to try to repeat our brief and i will try to be mindful of the standard of review and the burden of proof that we have at the same time while going through the issues of this court knows better than me because you've been in this case longer than i have what a huge human toll this case has taken ms doe has been mistreated for more than a decade fortunately now since late two thousand and fourteen she has been getting the residential her billet taishan the services that the school long ago said she was intitled to get at the same time the human toll it's been great both on her and on council and in those circumstances the orders on appeal here are particularly disappointing there are three issues today there are two orders being appealed in there across appeals as well in which the defendants say there should be any fees to a council or guardian there are three main issues one is the amount of the fee in the federal case second is whether any fear at all is compensable for the related stay proceedings and third is the feel for the amount of the fee for the guardian ad litum i'm going to spend most of my time on the first issue though obviously if you want to hear more about something else i'm sure you will let me know in dealing with the amount of the fee in the federal case there's a nutshell on page nine of our brief in which we set out the successive and it little chart the successive cuts that the district court made in the field request and looking at that i would point there are two figures that i would ask the court to keep in mind one thousand nine hundred fifty three is the number of hours that lead and ten years the other figure is fifteen hundred thirteen as of this court's decision in the second appeal in march i think twenty eleven counsel had spent fifteen hundred  thirteen hours in other words more than three quarters of all her hours were spent in achieving what this court said was prevailing status in march twentieth eleven and being entitled to a reasonable fee in those circumstances it's hard for me to understand how the district court can decide that the council should be entitled to two hundred thirty six hours or fewer with most of the reduction based on so called unsuccessful cla or poor results when so many the hours were spent just getting to a point where this court said she was the prevailing party if it's not a violation of the mandate rule it comes pretty darn close in my view so let me just run through  the first if you take a look at the first cut was twenty five cent across the board on patricia harrison's hours we think that was an abuse of discretion and we've got lots of reasons in the brief but to pinpoint it the district co attention at all to the fact that harrison herself in the exercise of billing discretion billion judgement had already taken off three hundred hours so taking off three or four hundred more hours by the district court without considering that we think was an abuse of discretion turning to the next cut was reducing the hourly rate from four hundred twenty five requested to two hundred eighty we think that was an abuse of discretion because the district court took the wrong benchmark it looked heavily at two cases that had used rates of two sixty five to eighty five i think but in both those cases judge ross anderson and judge brian harwell had said this is the rate for routine work by associate level lawyers and  because and that was the rate the benchmark that the district court here picked and so we think that clearly didn't apply the third cut was more than seven hundred was seven hundred hours for so called unrelated claims we think that was an error of hensley versus at her heart because those were not unrelated distinct claims those were procedural steps along the way and hensley makes it real clear what's an unrelated claim these of the federal case including time spent in the two appeals and the two successful appeals to this court ok and let me just say before i get to the fourth cut all of all these  take on added significance when you think about the fact that the this was a contingent highly contingent highly undesirable case this court has talked in the pellegrin decision eloquently about the importance of recognizing contingency and the district court paid no attention to that and should have given every consideration to contingency and undesirability paid no  c t h two is not in the complaint at all this complaint was filed before and because there was not receiving any resident was not in a residence and so if the complaint is the definition of what the case is about this case was about residential debilitation about her entire title with the services in a group of causes of action or closely related seeking the same essential relief and if not a word about c t h to in the complaint secondly as i say the come back to that fifteen hundred thirteen hours had already been spent just in getting to what this court said was prevailing party status so the court taking knocking it down to that extraordinary amount of it which in the end amounted to a reduction of close to ninety percent of the request as i say it just makes it doesn't square with what actually happened let me take a minute i'm going to be very brief and not try try not to get into the weeds too much but talk just a little bit about that  and i'll just make several quick points because we've dealt with these in our brief and i'll direct you to the pages in our main brief we discuss are pages thirty seven forty two and the reply we've page thirteen the twenty five and thirty forty thirty eight number one we always knew that the issue of placement was a an administrative state administrative issue and kept trying to do is to get it heard there count defendants have cited to a number of issues places where they say we tried to get it done in the federal court if you look at those and we'll discuss those that are reply brief you'll see that those were only situations we were trying to get the state relief that we needed from state and couldn't do it through the secondly the proof is in the pudding she was always in a c t h to defendants put her there from the beginning the administrative law judge said in two thousand and seven she had to be there and when the defendants finally reevaluated her after losing it there were six year battle to try to disqualify him entirely they said oh yeah c t h two so the fact that they had a letter back in ok turning to the merits the defendants say if we had only appealed that two thousand and three letter office would have been saved well we know what we kept trying to appeal there's no end of times in which we asked the state agency restated minister of law judge to give us a hearing or a determination on placement it never happened he kept refusing any never did it so the notion that an appeal would have made a difference makes little sense  fact there had been a at that time the administrative law judge had already kicked out an appeal saying it had no jurisdiction secondly the defendants say if we had only agreed to a c t h one  as they told us that would that would have solved the problem frankly every piece of evidence in this case shows that a c t h one would have been dangerous and that counsel and guardian would have been derelict or worse in agreeing to it the point the difference between a one and a two is supervision count the defendants make it clear that the point about a c t h a c t h one is basically a foster home like a boarding house c t h to has twenty four hour a week supervision and in this case it's clear that doe always needed that and charleston d s n board where counsel and guardian and father testimony i think we also didn't cite that i apologize again is that pages two eighty one to two eighty four of the joint appendix she said dodo has seizures and she takes fifteen medications a day and she cannot she does not have the capacity to to do those things to survive the seizures and to to to keep on taking in the know what medications and when and some of them quite serious medication she cannot be on her own and so contributes to establishing your cause of action here that's not the delaware valley test and so we asked this court not to decide whether she should get paid for it but to to to put the right test in and to tell the district court here's the right so so for example we believe the odds are good that in fact the pendency of the federal case may have had an influence on them deciding to examine her and kick her out of the and the administrative law judge and the agency said unless you show signs before you're eighteen that you're retarded you're not retarded and the supreme court said no you have you don't have to show the signs before you're eighteen as long as you're shown before you're twenty two and in fact and here the administrative law judge in the end said well i don't think she showed him by the time she was eighteen but she did show by the time she was twenty two and an academic frankly for me it's only a few dollars so i can't complain a whole lot so it is principally the heresy and frankly it is mostly harrison frankly also her paralegal where the district court exercised its sort of  and we would not be appealing we would not be appealing that were just on the amount i mean frankly it's not a whole lot of money one way or the other not enough to waste three judges time but it's the role of the guardian ad litem in our legal system and the fact that judge perry thought it was important to have a guardian ad litem for this disabled litigant it's really it kept being bounced back and forth for them to do more so as i say if i might take just thirty seconds on the issue of the state think related fees number one there one point that was raised in the defendant's brief that we didn't quite adequately answer in our brief and that's they raise this they have a case called only him versus walking a moka something like a y prison case in which they say procedural rules cannot give right rise to substantive rights and that doesn't apply here because what they were talking with that court was the supreme court is talking about there was the definition of a liberty interest under the due process clause and i understand i agree that ordinarily procedural rules cannot give rise to substantive rights for purposes of the finding a liberty interest here we're talking about specific procedural and substantive rights created by the medicaid act itself got couple of things first of all it may be that well for it because if if the state proceedings had gone the way the defendants proposed she would be out of the program entirely and never have been able to pursue or obtain the benefits of this court's ruling that she was entitle to rez hab presidential ability with reasonable promptness and let me just say we're not just when we're not asking this court to decide that they were reasonably necessary that the way that work was reasonably necessary and related were asking this court to tell the district court that that's the test so the district court can make a determination under the right rule of law she she they ruled in two thousand and five as an administrative matter that she was not entitled to any services at that point she asked for a hearing and got a hearing before the administrative law  judge she lost that hearing it went to the administrative law court it went back and forth a couple of times then she appealed to the court of appeals and finally went to the state supreme court so what you're she went to the states very core twenty ok the only other thing i would say is we have applied for fees under the state statute for the state work and i was if she can't collect twice and i'm not here to tell this court which court should go first or which court should go second that case is in appeals it was the fees were turned down at the administrative level it's in the court of appeals been brief but not argued if that court of appeal if the court of appeals in the sacred appeals decides she's entitled to the fees there obviously she wouldn't have the fees here but the difference the point is the standard is more different difficult there we have to show in the state case under the state statute that the state action was unreasonable or without reasonable justification and so it's conceivable that we could lose there and still under our theory here on the delaware valley be entitled to fees in the federal court so i just want to make it clear to the court that's the procedural situation like case i think is that it is a it is or is and properly speaking always has been an action for the enforcement of a two thousand and three authorization by the department of disability and special needs as an  system and this court has recognized that in both the one and zero two that if you have a problem if you if you prefer c t h one i mean look to overall one you go to the state system and you get it or you try to get it there and mr durban are just there well that they've tried and try and try and haven't been able to succeed in getting any by to listen to them there well there are remedies if you can you get a hearing in a state court that doesn't give you the right under the medicaid act come in here and try to try to revise the state relief that was going to find a way used to court and it was pretty easy to for instance in two thousand and seven as a result of sort of an ancillary part of the administrat decision in this court that's not what this election was about this election was about enforcing the two thousand and three authorization it went back one would think ok the four circuit is to work with  on eighty five and basically what happened when we got back down from from from doe two in two thousand and eleven she sent me an e mail said well we'd like to try a twenty four hour care quote s l p to do and we worked and we went back and forth and didn't reject it out of here and i was the d d s and looking into it you send us your budget that took a while but she did send the budget it turned out that it was way out of line with what the d s m had in mind with for an us lp to a part which is for america with fifty or sixty dollars a term sixty one and she wrote back with us to back to me just a few days later and i am afraid that i see th one will not meet the the plan as nice as turn sixty two so we will put it out there we can't force people to remanded for a hearing about whether she was really mentally retarded i have to say that the hearing officer ruled against us on that in the end but there was i was some of it was substantial evidence either way or another really was reorganized didn't even slower but that's what happened we didn't we didn't we didn't appeal that because there was s choices doesn't include city to this this plan of one on some points but there are of no value to if you when actually the defendants won some points too we won on the fact that you don't revise in our duty if we had not defended that because that's what this court said you don't come here to get a revision of the placement decision and the answer is what did she get through the injunction nothing what protocol really of what difference would it make to pseudo that this that this case was yes they only did that after being ordered to do so to comply with first obligation to ten of those alternative placement options they were doing that before this federal order came out that army and that's something the court ordered the federal order says to do this and d d only did it after the federal order even if it ordered them to kampala with their obligation they didn't do this they didn't have it at the beginning it was in this court they do have that whether they want to not and that's a good thing to have it you know they didn't ask i would say i would say it was it was always on the table but who in view of the zero was reasonable and did give attorneys fees don't you disagree with you on that zero proposition because you can't really defend this award based on their analysis of the district order that the planners degree of success was limited the status quo remains in effect the status quo that was being discussed was she's still in the same place she always wanted obviously that's going to close to our mandate because we said it was she was   that runs in the one nine hundred eighty three and mercer makes it clear that in those instances where you have a significant legal issue involved that serves a public purpose and clearly whether that's what they wanted or not that seems to be a rule that serves of public play purpose and is a significant legal issue i mean this is one nine hundred eighty three actions you don't just come up and say something is automatically supports that problems issues so you get beyond already other arguments and go they will if we go there i would just move to the maybe it's worth something but not worth the kind of dollars they're asking for and maybe something in the same vers you say they weren't not title anything will be your position is you cross appealed and you say they're not entirely anything the two that's what your appeal is right that's the cross appeal at your cross appeal we get that we have to take out that you have a cross appeal believe it or not titled to anything no fees no call zilch that that's the reasonable result and not withstanding what's going on  time you spent and consider it and you lost my my stuff is in the record when i don't know what generac are bob but i don't think it would be i think when i look at her but but but you lost and she won we there was no that there responsibility to establish that placement that as of two thousand and love and they had abdicated their duty and probably not provided rest hey on the record also to and there's an affidavit saying we were instructed not to pursue that placement by defendant lycee so and at the end of the day attention services and a placement that every physician says that she needs to be these services are cost and eighty three thousand dollars a year that's not minuscule are i think that idea that we ended up with nothing it was that great tremendous cost to pseudo as well as to me and my practice i call the court's attention to the chart at seventeen thirty four that shows it during this time when she was receiving respite instead of breast hair her i q went from sixty nine to fifty four and to raise the for over a decade had on today but it's only because of what you people have done here at the four circuit that pseudo now is in the placement that she needs as to you're absolutely right attention to a couple of the pages j a fourteen sixty nine where they says this shows at the start so why she's still in respect and they said well they did that because they wanted to they didn't think they were going to have to keep or this long and it was a cheap way of putting our somewhere without providing habilitation services for her  i'd also like to call the court's attention to what we asked for in the summary judgment hearing and the summary judgment hearing before margaret same judge same or we didn't ask her to place  yesterday but we weren't asking for the judge for the district judge to place her there we're asking for an injunction to make them give us a hearing and as late as two thousand and thirteen there is an order in the court where the hearing officer said i'm not going to change my order in two thousand and seven saying she should be placed in a c th to a and i and i don't have the authority to enforce the four circuits order the one who prepared the play and said i can't put it on the two thousand and thirteen plan because they told me not to and i think if you look at the end of the sum n and guardian ad litem the as call home and resolve this thing or do you want us to remain that for some further proceedings oh you want  do what you are asked and what we want you to do your honor is we believe that the record contains sufficient documentation to prove our right to approve our hours and to  is a federal free right we haven't we agreed with counsel that we would argue about the amount of the state theory where back at the federal court if the hundred thousand dollars and give you another number what you want what's the number it's a number that we've asked on the federal fees is about nine hundred thousand dollars to the number that you ask argue on our requests these power petition for the time that we spent since two thousand and thirteen this is a matter of great public  it's devastated my practice  it it breaks my heart we admire you but would we get into again but it breaks my heart when i get calm and no one other than nate is taking these cases in south carolina and by wording if there is reasonable that was the goal of congress in passing one nine hundred eighty act to encourage attorneys to represent people who can't she was in a placement and when there's a month or two after this case was brought and she was her placement was on changed after this case was filed the state the state case which was the only case that should have been brought in the first place really would have gone along if this case had never been brought she would have been probably denied for lack of a little disability that would have been appealed it would have won or lost as the case may be on the discussed it we believe we believe that these that the time is inextricably intertwined with the federal case but and we think and we ask you to to say that that's the rule of law but the determination of whether it is