district court will have a somewhat complicated a for size in the siding how much of the fee is reasonable and on that score  what kind of instructions to this court give if if we don't reach the question of whether the international here to the side where the district court considered the right things in the skating what was reasonable what kind of instruction should we give well if you're right i think settles at that point and it follows directly from the principle of them are all announced by the supreme court and the question of entitlement these has to be viewed from the perspective of the court that ultimately decided the merits of this case with respect to the supreme court the principle due process issues that they lost in this court and like to spend most of my time talking about the second issue if i could high position as straightforward on that issue the insurance companies were lost on that issue in this court and there's nothing that happened in the supreme court to change that result they're not the prevailing parties on that issue and there's no public policy reason to treat them as the prevailing parties although the prevailing parties in litigation when the case ended at the supreme so this court's just position of those two issues was not vacated the judgment of the court was reversed which means that the commissioner couldn't force the statute but for purposes of deciding who's the prevailing party on the  correct and that's and i suppose that's that's the key to your argument but the presidential effect of the materials that the court chose not to happened in a couple circumstances for example if there's a consent decree entered before there's any adjudication then there's an education of the one hundred eighty three claim or where there is there's a credential rule also that applies in another set of facts imagine that somebody brings a fee bearing constitutional claim coupled it with the state law claiming that arises out of the same facts there's a well known prudential rule that essentially directs the course not to decide the federal constitutional that the case should be decided on state law grounds so in that circumstance the feed there in playing well will not be decided it will not be determined and what congress said in the legislative history as we this case falls with and the hasn't decided it raw or not yes yes your honor you're right and in the clear answer is that this case does not fall within that rule and i'll tell you why in the example that i just gave you what congress was focused on was a situation where a party is not able to get to a speed bearing question because the courts are directed not to decide it in our situation the  supreme court had three constitutional issues and chronicler of equal dignity it chose to decide one of the three issues but not the other two that there was no credential rule told the supreme court you must decide the foreign affairs issue and you can affairs issue and then reverse this court's judgment on foreign affairs grounds there would be no basis for the insurance companies to argue that things are startling the prevailing party on claims that the supreme court never decided that this court had ruled on in the commissioner's favor and the retained the potential value and there's no difference between that situation and the situation with the court granted stewart on all three issues decided one issue and left the others alone to continue to have presidential value under the several things the first thing it did was say that the district court never should have gotten to the federal constitutional question should not have decided that relying on the credential rule that i just described were cases should be decided on state law don't need to reach that issue and we don't intend to reach that issue the issue is moot it's nude because the district court never should have gone there never should have decided that that or a constitutional case so therefore  court in careerists treated the district court as having not decided the federal constitutional claim then proceeded to cite cases where the the federal the federal constitutional claim was under credential rule that there was in place here that directed an appellate court to decide one issue rather than another and that's a critical distinction again the policy underlying the congress's legislative history and  insurance companies so the question is whether there's some reason to assume that they would have a should be the prevailing parties on those claims and i'm what i'm saying is that there's a limited circumstance that marlowe's dealing with a congress who is dealing with it so as it may be plaintiff is not permitted to get to a good bearing claim because the courts for prudential reasons say that the case should be decided on other grounds that's not our situation here the supreme court could have chosen any one of the three claims they chose one not the others  didn't choose the foreign affairs claim for prudential reasons and there's no reason to single these people out suddenly as prevailing parties on a nine hundred eighty three client let me ask you about the other piece of the equation here which is the foreign affairs claim itself the foreign affairs claim is not the there in your honor the california statute was preempted by expressions of foreign policy that were reflected both inside and outside of executive agreements that the federal government headed into with other countries and these this foreign policy was directed toward assisting holocaust survivors in pursuing claims that they had the foreign affairs power was intended to protect the executive branch's ability to engage in  diplomacy to engage in foreign affairs with other countries it was not intended to protect any rights in the insurance companies this case was about this case in the supreme court was about the president's power protecting that power not about protecting any rice the executive agreements in the expressions of foreign policy didn't guarantee or promise any legal piece to the insurance companies from state regulation there was no commitment that legal piece would be  guarantee or promise of legal fees and so at best what you have here is a situation where these folks are incidental beneficiaries of the current foreign policy and they have had an interest in seeing that the foreign particularly where you're dealing with foreign policy expressions that could come from various members of the executive branch and that might change from day to day we think is the course to be very cautious in finding and i'm and they view as to the creation of a right arising out of the circumstances state law under the supremacy clause of being grounded not on individual rights but of spirit on considerations of power will not support an action under section one nine hundred eighty three and will not therefor