our final cases sanitary board of the city of charleston force wheeler we have this for your floor yes right yes or so you're going to talk to us for ten minutes and then mr cheney yes is going to talk to fees and then it separately noted the categories of prevailing party and substantially perowne party the st category or statutes contain prevailing party and these are described in the canon and they require a judgment on the merits before  the statutes involved where the fair housing minister mehmet act and the a t f both of which were railing party statutes the nd category are statutes of award fees whenever appropriate under the catalyst area where a party receives a substantial relief heart case i think that's it from the supreme court the court divided up field wards in the four general categories prevailing party substantially grayling party where appropriate and discretionary why does it apply to substantially prevailing party because it's the distinction between prevailing which requires a judgment on the merits versus substantial prevailing party where it requires you to establish some relief prior to a judgment on question was how can they establish the language that will allow parties to continue to receive fees under the catalyst theory where they would have relief short of judgment on the merits and it seems that based on the existing cash flows out there substantial prevailing party would be the standard that you would choose however the same there's some legislative history you can direct us to that or or the members of congress said there were that or that there's a committee report or something that says substantially prevailing party under the statute has to include the catalyst theory no the that well when they amended the statute to include the page thirty three that fees could be awarded to a party that achieved quote a successful settlement so once they introduce the language of prevailing or substantially prevailing party if they wanted to be a profile in party statute only then an award successful settlement would not qualify under the standard you can't win a successful settlement typically be approved by the court pursuant to a consent judgment it you can get a consent judgment entered through the court but but there's no requirement in parties settle and required to give notice of settlement without such consent so it's our position that if congress had intended a consent decree be required it would have been included in the description as their insides if that were the case why why why would you need to include substantial van party want to stop a prevailing party let's suppose if congress intended for the catalyst theory to remain they would have a clue included it in addition to this inclusion express inclusion of the settlement option but they did well they left in the language about whenever appropriate they add a prevailing party to indicate that an award of fees is appropriate when a party receives judgment on the merits but they include a substantial green party to indicate that in some instances they may have  thought this whole the whole basis for this change in the statute was as a result of the d c circuit case which was in fact overruled by the supreme court which makes me wonder why they needed to change the statute in any event but congress wanted to be clear in no case should a party receive an award or didn't win on anything and that's what they were trying to get at here so why is it reasonable to conclude that this had nothing at all with that to do with the catulus they are recover g simply making it clear that if you prevail entirely you're entitle to an award or these if you substantially prevail prevail on some of the claims at issue and a judgment is entered on those portions of the case you you get an but the problem with that is that st the district court didn't say that they said issues not claims but even if that were true the e p a would be still be wrong because that would mean that under a prevailing party statute a party would have to win on every claim urged to obtain fees a supreme court rejected that in hensley versus eckert board held that litigant should be allowed in good faith to raise all alternative legal grounds for desired outcome and the court's rejection of her failure to reach certain grounds is not a sufficient reason  this is an ideal but why couldn't you simply interpret those phrases differently depending on the context so prevailing in those other statutes includes substantially prevailing but here given the the problem that congress sought the remedy we're going to look at it differently well so in essence with with courses what was decided was the court of discretion to award where a party received not only no judgments favor though no relief of any kind even before judgment on the merits so that is that is our interpretation of why congress decided to include substantial prevailing party and even in in the ruckelshaus the court invited congress to come in step in and address this issue of what they used partially prevailing parties but the same issue was there that we're dealing with a standard that is less than a requirement for obtaining relief on the merits can i ask you a question about it sort of relates to judge diaz's question so i thought that the entire premise argument here is that in can in the supreme court says this is what prevailing party means and this is what it means everywhere you can't really be context pacific like prevailing party means prevailing party period and that's the whole reason we're here because otherwise there be no particular reason to think that back in the one thousand nine hundred and eighty s congress intended this buchanan meaning for prevailing party but buchanan says it applies to every time prevailing part used and so i have some questions about whether we can even really look at the legislative year legislative history here but also i do see that you can in itself says your prevailing party even if you've only prevailed on some of your claims so i think we have to understand the when congress said prevailing party in this clean water a statute prevailing party itself already incorporated those terms have to mean something separate it's entirely possible if you went on the merits you would prevail and substantial prevail but in some instances you could win without a judgment on the merits and you would substantially fail but yet not have the judgment merits before you wouldn't prevail on party stat we have a statute that has three different provisions and every other case we're dealing with really only has one or two of those particular provisions that are in there yes it is a prevailing pretty standard that's also substantial prend party and what does that mean is our position that congress added that to ensure that parties can obtain relief short of the try to capsulize two questions i have for all the parties one is it would seem like that the substantially prevailing party would have to be some sort of subset of prevailing parties and i'm not sure if you introduce the catalyst theory that that would be true and secondly the if the catalyst theory applies and i think your reply probably agrees this in the what if it also applies in the substantially prevailing category in the statute as you present it what's left for the other two categories who are appropriate discretionary to do subset the parties obtains the relief requested or the sub so that obtains a final judgment on the merits those are not necessarily the same thing and so it's our position that the subset a prevailing party that you mentioned we're talking about obtaining relief but not getting the judgment and that's th opportunity to speak on this important legal question i want to start with the questions that you asked judge because you suggested that they were questions for every party in the case and if i understood you correctly if we look at substantially prevailing perhaps it has to be a subset of what are prevailing party is so then you have to start with what is a prevailing party and hensley which was the supreme court law at the time that congress wrote rewrote the amendments in one thousand nine hundred and seven told us that a prevailing party was a party that had prevailed on some aspect of the so something short of total success was already available as a prevailing part you add the ferrar in buckhannon requirement of a judicial employments you are the court order and that gives us today's definition prevail and part prevail on some issues but with a judicial in private to or what what does a substantially prevailing party me will this court address that question already and rival the ever just four years after it on dog became the st court in the country to reject the catalyst theory under prevailing party statutes this court applied and held that the catalyst theory did apply to the fifty shifting provision of the privacy act and  shifting provision of the privacy act allows awards to complainants who have substantially prevailed so that catalyst theory has historically been part of this court's consideration of what substantially prevail means and that case has never been overturned and it remains the law of the circuit and therefore should control in this case now the question is your sub the next part of your question was if the catalyst theory does apply what does that mean about the whenever appropriate  theory for a prevailing party statute went ahead and said catulus theory is perfectly appropriate in the case of a substantially prevailing party status this case or to this court had acknowledged that distinction already pre bought can and nothing about  undermines that and in fact heart tells us in heart justice thomas cautioned courts warned courts not to just blindly apply but canon to any statute instead it must give consideration to the language and prevailing parties are those that meet the catalyst theory here in the east shifting statute that you're aware of that puts three of these categories together like this one i'm not aware of any no here are you know originally this language in the clean water act squared up really nicely with the clean air act which is not surprising because congress borrowed large parts of the clean water act from the clean air act and it was the clean air act fee shifting provision that was at issue when corsets ruckelshaus and so congress and you know even though the amendment and it just kind of speaks to the legislative history just little bit and why did they go ahead and do this if ruckelshaus had already been decided well in one thousand nine hundred and eighty seven that's when the amendment happened but congress had worked for years on trying to generate a whole package of amendments through the clean water act and it had been part of several congressional sessions prior to that so there were conversations going on prior to two to the finality of this was ending up in the clean water act but really i think you've got to give you know a separate meaning to these two provisions and that's where e p a s position in this case falls short because e p a would would would violate position violates that principle and for that reason they have yet to explain how they can square the circle and fit their position within the whole body of prevailing party case law with that i respectfully request that the court good morning your honour's in it please the court tomorrow roundtree for the united states the threshold issue in this case is a straightforward question of what authority the court should use to interpret the clean water act see eligibility standard now in that standard that stant the sole standard is prevailing or substantially prevailing party now there are two categories of authorities on which the court should rely the st is the category that consists of supreme court and four circuit preceden that provide an undisputed definition to your point a terrorist and undisputed definition of the root term of the acts standard the nd category of that's right and so is it an undisputed definition of  some of your argument on bri perhaps incorrectly to me if you if a party filed a complaint and it had five counts and it went to verdict in a came back and you got a  calles not on the other two you would not count that as a prevailing party it depends the question did the party prevail in the lawsuit and are you looking at did it prevail in particular claims or does it do to prevail on a particular claim so it's a question of extent and degree i'm sorry i thought your answer to my question was that we know from pew can enter a can and which provides one definition of prevailing that goes across context that when the clean water act uses the phrase prevailing party it means you won on the merits on some it includes winning on the merits on some but not all of your claims and i thought your brief said that the work that is done in this statute by substantially prevailing is that that covers you in on some but not all of your claims so how do you reconcile those i think i hear the court asking perhaps what is what is the range what the what is the extent that's covered covered in the clean water act language because it speaks to prevailing party or substantially prevailing party and i think you're it's really that to go back to the hypothetical i gave you if a party comes in and asked for considered substantially a critic or view that as not being a prevailing party given that you can and says expressly if you prevail on some but not all of your claims you are a prevailing party i'm so used to your saying on a court think i understand your argument that a court might think that you are substantially prevailing if you went on three out of five claims but wouldn't a court also have to think that you are prevailing oh yes and yes yes yes and i would also have to think you are prevailing work in your view does the additional language or substantially prevailing do in the statute it's not necessary to cover people who prevail on some but not all of their claims so what does it do the attachment that we're speaking of have to import from can in the rest of the definition of prevailing into prevailing party that requires a win on the merits it requires judicial imprimatur yes your entire argument as i understand it is all of that part of buchanan has to by the terms of buchanan be imported into the statute so why don't we import the rest of the sentence that says on some but not all of the claims can you split it up i'm sorry and i don't see the problem perhaps it's because what we're saying is cannon defiance prevailing party prevailing party is the root term of the standard in this case so i this one more time because i genuinely don't understand buchanan defines the root term prevailing correct which applies to both prevailing and substantially prevailing party yes defines prevailing party by itself without the modifier substantial include winning on some but not all of your clain ok with judicial and camacho if that is so i don't understand the congress apparently decided that that clarification that you can win on some but not all was needed because the phrase prevailing or substantially prevailing party can be read as you prevail on all claims or you prevail  covered winning on some but all of your claims by saying substantially prevailing party that's how congress got to that's how i see congress got to that point and i apologize if i'm missing your point but  particular statute but because because we have these three definitions prevailing substantially prevailing they mean something different i know if i might if i might commit actually i'm saying i think actually the opposite of what you're saying because the we have one standard in the act it's prevailing or substantially prevailing party that's the standard the root term of that entire standard is prevailing party so we have a definition for prevailing party therefore it separated by the disjunctive that they have to have some type of dissimilar meaning otherwise the substantially prevailing party term iso think that's what all our questions are going to is what's the difference between a prevailing party and a substantially prevailing party or are you saying that this is just some committee staffer who was drinking too much that night they were consistently across all theall shifting statutes regardless of context ok so we have this term we plop it into the clean water act it couldn't be more clear it has got to have the same meaning in the clean water a it's the root term it has got to mean the same thing it's got to require judicial imprimatur regardless right so the question becomes we have the slightly mystic change we've added the adjective the simple adjective substantially what did that do well let's think about it we if we had a standard that said substantially prevailing party partially prevailing party by the skin of your teeth prevailing party you still have to be a prevailing party for them we should read the phrase substantially prevailing party to mean substantially prevailed on the merits on some but in all of your claims because we know prevailing party means prevailed on the merits on some but not all of your claims so we should  we think that that means you substantially been derailed so then what work is the word substantially going it's differential perhaps i can start with the gradations prevailing has got to be something here  is something less if if if the court if the if a con and it's already incorporated into prevailing why would congress have needed to say if substantially is a subset of prevailing why couldn't congress just have said prevailing party apparently it just simply wanted to make clear to courts it doesn't if the court for some reason because this is before but cannon if the court for some reason if it if i could just finish if the if congress clearly could have that's at least an argument suppose the other point is even if there is some concern about what these terms mean i don't know what's the argument for importing a catalyst theory or recovery into substantially prevailing i don't know what the argument is there isn't because as i said given given that prevailing party is to the definition of prevailing party is to apply consistently across often fall fee shifting statute there is no way that all of a sudden the cat cutting can be inserted into the term substantially prevailing party and deprive that term of its core meaning which is what the other side is suggesting somehow the terms of specially prevailing party loses all meaning somewhat contradictory of substantial insofar as although a slightly different context and they say sometimes substantial means very like you prevail but you prevail by a lot but sometimes it means not formally but functionally you didn't formally prevail but functionally in substance you got what you were after so i think it's that meaning that would allow you to think maybe substantially prevailing captures the catalyst if that were the case given the current in which the clean water act w amended i certainly think congress would have been more specific in saying that particularly because the act originally read as one that could envelop or in compass the the catalyst theory this was congress's attempt to change it and had it wanted to maintain any of the life that it originally had and i genuinely struggle with this because i think the language in buchanan which you rely on very heavily in your arguments in context doesn't matter we don't care what the context of the statute is prevailing means prevailing if we think that is true and i think that's an odd weight for the i struggle with that because context matters and everywhere else the why wouldn't matter here but if that's true does the legislative history and sort of imagining what congress might have thought in one thousand nine hundred and eighty seven are we allowed to do any of that or or we just really stuck with what the court said in buchanan it doesn't matter what congress read that language and you can and that's as context doesn't matter this is a term of art don't look at contests that i'm asking for the government's position on whether that should be well that it's actually precedent supreme when in this court i think that we can look at the legislate we may look at the seven it's fair for the court to consider i don't know that the court cannot consider it i just i am afraid of going into a trap that i don't understand i don't i just don't understand whether you think we should look at the i think the thought i think indeed the court can look to the legislative history particularly given that we started with a statute that read one way and was changed to read another way and just have a  so we can look at the legislative history and so if the legislative history indicated something different about the meaning of prevailing could we look at that after people can and i am could there is no trap here i'm i would required the baseline perhaps we can hold to comfort in knowing the baseline requirement of prevailing parties that there's got to be judicial imprimatur so parsing as to what's prevailing is it some all thirty five i don't know is absolutely necessary that we certainly disagree with the supreme court and you're wrong yes and this statute this clean water act substantially prevailed means something different than any other statute and i guess what judge terrace is getting at is whether or not the legislative history in this case supports a different meaning for substantially prevail what do you think a different meaning then well different than it and the cows are on the other cases that suggest that it's a straight meaning all across the board but basically the same thing and because of that we're going to apply the canon requirement to have the judicial order in order for there to be a free recovery so was the district courts approach the same i think what the district court was acknowledging that we have this phrase per prevailing party that has got to apply whether you're talking about substantially prevailing party or prevailing party the requirements of prevailing party m no no i particularly because as i started the standard here is prevailing or substantially prevailing party that is what we're trying to figure out the definition of not parsing the creating two different words congress could have said a prevailing party or substantially prevailing party and perhaps then we have to have this discussion we don't because as it's worded it's a unique phraseology but it's what's there and it's what we're stuck with that's what we have to deal with and again i said as the root term of the sole standard in this case prevailing party has got to have meaning across the board if i might just address the rival case which was raised  it has no application here reinbold is one in a line of cases that involves the privacy act the privacy act has the provision requirement that a claimant substantially prevail period that's the language reinbold along with a long line of cases prior to a court of appeals cases recognized that that phrase substantially prevailed should be construed using cases that have construed foyle which had exactly the same language substantially prevailed the case is the court the court of appeals cases that have addressed this except this and do not even question it as a matter of fact in reinbold there's a case by the name of sweat in which the d c circuit actually said that the cases that construe foyer established doctrine for analyzing the privacy act case and again the privacy act case was an issue and reinbold to the extent the court has any question as to the involved stands for the proposition that privacy act cases way cases should be analyzed correctly in terms of their feet provision every kids that has cited to reinbold after it was decided has been a the district court case cites to the reinbold holding it doesn't use the entire test that's used for that substantially prevailing tests in those separate set of cases it removes the  language that specific to foyer specific to privacy act cases which actually is language that speaks to the release of records and if i might the test in the for the privacy act and for cases is that the fee applicant claim was reasonably necessary and substantially caused by the requested records to be released it and substantially cause the request records to be released in the overall decision the court removed the reference to requested records that were to be released and simply refers to it as relief i simply want to make sure that the court understands that that case has no application here it's not the same standard and doesn't control thank you very much or you get the last w three that if we were dealing with a prevailing party standard that having five counts three wins means you are prevailing party no question about substantial part is issued the fact they didn't win on all on all claims doesn't matter they have prevailed also a question about heart you asked about the four categories in heart supreme court actually broke these actually into three groups mostly shifting provisions from a court order tourney fees for only to a prevailing party that's group one  win on you know an insubstantial issue before the court but within this context the change of paying party or successful success requires you richey you achieve some relief that you requested but short of a ruling on the  this instance we're asking that you substantially prevailing part must mean something it was included by congress they used the word or congress could have stopped prevailing already and they didn't it has to mean something so with that we ask then that the