prevailing party for the five claims that were taken to trial and ultimately decided by the jury as a result of that that plaintiff filed a motion for attorney's fees after trial specifically that once a judge is a trial judge determines that the victory is not the minimalists are merely technical he's required to use a traditional lodestar analysis in this provide a lodestar analysis is that what the opinion says and for are for are says that when there's a nominal damages award the usual fee will be no fee not always but the usual fe be no fee a low fee would be allowed and the court need not go through the many steps involved in determining the loads are that's that's now what the implication is from the concurring three fifty nine to one circuit case well we'll ok so now you're you want us to take a night circuit case a statement and use that to officiate with the supreme court road in floor no i don't we haven't we the third circuit adopted the o'connor factors in java that's exactly right and so that's what i'm you know that's what once this court and top reasonable tourney's rate and reasonable hours here in some kind of a convoluted and confusing fashion the judge sue a spot they took up his own evaluation of how many hours she should ward to the nominal damage award having found though that i'm not going to take issue with whether is findings right or wrong that this is a significant case and there were public policy implications and it's going to be a wonderful teaching tool for other people shouldn't for every court in the country shouldn't he then have gone to the lodestar instead of considering whether or not there is low or no fees that's exactly what mean this is what i'm wrestling with is should we treat cases like this one which is a straight civil rights case differently categorically differently in cases that are further  complicated by the fact of a tort claim or some ancillary claim other than a civil rights claim where there is a verdict as there was in genoa you know well i don't know how far this court wants to go i i thought justice o'connor's concurrence was helpful in light of the fact that there was this hundred thousand dollars damages award on the non civil rights claim but we don't have any of that here this is a a straight civil rights case why doesn't this fit neatly under the floor rubric where as jumma provides other considerations that seem to distinguish it factually from farrar in this case well there well if it's de minimus then you do use than the no food no lo fi approach if you know it's a question of where you draw the line you know what we draw the line no law is one standard if it's you know that was certainly the consensus of everybody that it but the we resolved in johm an issue that the majority opinion in farrar didn't have to reach because jonna involved a case of significance what a great judge of a dell say the impact on the victim may be difficult to express in monetary terms but the significance of the right vindicated and the purpose served by the litigation cannot be overlooked and particularly in the prison setting should not be diminished so that's not a or there was a dollar though and so it was for i mean it should be really say there's a difference between a dollar when the plaintiff the point of gets a dollar and they're asking for seventeen million the plaintiff gets a dollar when they're asking for ten million the plaintiff gets a dollar when they're asking one hundred thousand i mean it's a it's a nominal damages award it's ten minutes and every one of those cases nominal damages does not mean does not translate into de minimus or merely technical as i mentioned at the beginning outset we were successful we were you know in four of our four out of the five hundred seventy two excessive force claims against these into these officers and two bystander liabilities against these officers and the only claim that we lost was a bison a liability against one of the officers and this is a vindication of your constitutional rights not you know it was so so it was for our ok what it's up to the trial judge to determine whether in fact he believes it would be the minimus or not and what he does and his in his his award of two thousand and change speaks volumes to that that that tells us what he thought about it no i think that he was felt constrained by farrar that he had to use no or low when the fact the matter is he does not once he determines that it's not the he's not constrained by a no lo fi he uses the lodestar and then he makes the appropriate reductions or or modifications based upon the adversarial system what the defense would argue to and the adjustment should be made to an attorney can't find anything in four are the opinion of the court that requires him to can calculate the lodestar in fact the language for our which i could quote if i had to says that you don't have to calculate the but even the implication there would be that maybe there's some something else where you get doesn't say in all cases it says and to minimize cases you you get to know what real your argument is that this district judge felt constrained to give you twenty five dollars an hour instead of four hundred dollars an hour where it is that felt he was constrained not to use a traditional lodestar when i really needed i did it the other way quite frankly it looks to me like he felt for some reason perhaps johm of that he had to do the lodestar but he really didn't want to because speaking only for myself giving you twenty five dollars an hour strikes me as rather outlandish it's strikes me is designed to reach the result i e i'm going to give this gentleman a very low fee because the award was it may be a little maybe it may have not been in the in the mind of the district court judge that he did apply the lodestar and used it at the twenty five dollars rate is that you know is he putting the cart before the significance or public purpose exactly right and what is the significance of public purpose here because i have no idea whether whether the jury found in your favor because the handcuffs were too tight or because they threw your client to the ground or some combination of both or because of the like the one hour that he was in custody or that that fact that there were two of two officers who had a set of force in the same two officers had bystander liability what if i mean by  that point is that i don't think you have to get that so we are in no way you'd have to get that far because that's not the issue here since it's only our appeal and the only issue when we raise the issue that we're raising on our appeal is once a district court judge says it's not the minimum is that what's the standard it should be using in determining the attorney's fees under one nine hundred eighty eight you shouldn't revisit there's no you don't have any jurisdiction i believe to revisit whether in fact it was or wasn't  minimus because the only issue on this appeal is the standard by that that the judge uses you know part b we didn't we didn't appeal from part a of his opinion which is the determination that it was not a minimum we only appeared for the appeal the only good morning your honor smile name is michael barker i represent all the defendants in this case but on appeal we have francis smyth and kevin's of pilly my clients excuse me fraud decision we said it fits like gloves on a finger to this case this is purely a nominal damages case velie s was a  that would be the majority opinion under ferrar telling us in those circumstances the usual fee is no fee there are cases exceptions that could apply and judge i remiss in this case i think got got it wrong frankly when we look at what his opinion says compared to what the jury verdict says he should have never never said this is not a de minimus case the jury verdict tells us only that answer question number one the defendant's intentionally committed some act under color of state law that violated plaintiff i've been belly asis fourth amendment right not to be subjected to excess it's a it's unknown it's a what's the teaching moment here there isn't one other than the fact that mr of aliases rights were deprived he was deprived his rights on that day we know that much from the jury it just like in farrar this this litigant has the satisfaction of knowing that a federal court concluded that his rights had been violated in some unspecified way and that's all he knows now what's important for this court is when we look at what judge irene us did he says well it's not a de minimus case well why he why is that while he goes on about how the in his opinion the handcuffing occurred and that's what a dvanced the law and that's a guiding principle for us and that tells us something for public policy you know the interesting thing mr parker is you say at seventeen of your brief that plaintive is overly concerned with the semantics of the district court's decision i assume you mean the semantics to mean that part of the decision that's finds a significant legal issue in this case that serves an important public purpose with forty page forty well then i maybe i just didn't get that far but isn't that what this case is all about here well i think what it's all about is if you have a nominal damages case where the had been seeking compensatory damages you don't get an attorney the unless you can show that you fall into one of the exceptions the the exceptions we get guiding principles from justice o'connor and she tells us about three factors in front of john and john and two of those factors the second in the third one extent the the legal issue involved for the number two and the public policy number three and the opinion of judge i remain as which deals with those two issues rather collectively together is based on well this case is instructive instructive about handcuffing and that dances the law and that tells us something for public policy but the jury verdict never says that's the reason for this constitutional violation occurred no judge in delhi runnin in jhana spoke about the district judge it was judge debra boyce in that case his his intimate familiarity with the evidence in the case right yes your honor i was there too with mr bruno mr bruno had three themes in his case you took him out of the truck well mr belly a says look i'm minding my own business i'm sitting in the truck and without any word or warning you come up you take me out you slam me to the ground you hurt my a chest you hurt my arms i get scratches then you put on the handcuffs and the handcuffs are applied to tight and then the third part the handcuffs are left on when i'm complaining about it and you should have done that three different theories of liability also failure to intervene the bystander i never did understand because the one guy who was a vice ender they found him not liable and the two verdict was the takedown because the one person that wasn't there for the takedown and not liable for bystander liability is officer chicopee we have judge i rena's his findings i mean we can speculate what's important  what's not but he made whatever findings whether they're wrong right inadequate more than sufficient i don't know that but that's why we're here your honor because he's wrong but doesn't the law give the trial  argument judge iryna says degree of success argument with but i'm quoting from patroon it the district court's degree of success argument was based on an impermissible reconstruction of the jury force even in the absence of physical injury and you know i'm reading from the opinion now he found that that met the standard that took the case out of the men in this category but it doesn't your honor because in order to come out of the de minimus category and significant legal issue you have to advance the law you can't have a general proposition that excess if you support says is contrary to our civil rights and that's the significant legal issue should we send this back and let him explain what he meant by still a significant issue and what public policy would be advance he can't if he's not the fact finder for this court to find that this that this case advances the law or tells us something for public policy the jury verdict would have to do that and the jury verdict couldn't do that when we did every fourth amendment violation is not a de minimus case is a garden variety bird it's not a special verdict that breaks down the the cognize of all claims any one of which could have risen to the level of fourth amendment violation correct and any one of which if it had been properly set up with special but why shouldn't we to judge barry's point why should we send this back because it appears that the trial judge is in balancing and trying to make this difficult decision we're getting very mixed signals from the trial court you don't  see we're not we're getting the signal that this is not de minimus gee this is important and then my goodness you must have rejoiced when you saw the the fear ward right twenty two hundred dollars twenty five hundred i can't imagine mr bruno was very happy about that because we can't we can't really know what the judge was thinking here regarding what should have been no fee should be low fee well i'm our point is you send it back you are bound by the farrar decision which is no fee but much more doesn't say that force is usually no fee i mean usually right yeah right and i was not a case where there was a significant legal issue public policy find it  why shouldn't we just clear the air because what i would submit to what this appellate court is faced with is a large cloud and we're not a court of first impression we don't make these decisions on the ground in fact i was struck in reviewing the case that the only current theme that i can find in the case law is the courts of appeals deferring to the trial judges exercise of discretion in what the fee should be whether it's a no fee case a low fee case medium fee case or a high fee case i've seen awards of three hundred thousand dollars in fees up held two hundred thousand dollars in fees and as we know in farrar there was no fee and that was of help that's the constant theme running through it so why shouldn't we send it back to judge arenas with some some guidance so that he can exercise it his discretion and we're not well because we know certain facts we know they s compensatory damages we know that there were only nominal damages awarded we know that you have to have three criteria for the judge to see it as an sectional case and we know the first one is the degree of success and in this case we know that the we have the one dollar nominal damages versus one hundred fifty thousand dollars we know that the plaintiff really didn't establish liability in this case because the plaintiff could only prove the violation of a non specified right and that's that and didn't prove causation or damages none so one part of one in a case that the district judge describe significant i'm going to say didn't prove liability because under section one nine hundred eighty three to prove liability you have to show that the constitutional deprivation cause the damages and in this case that didn't happen the jury so found was and then how could the one dollar be appropriate well the one dollars appropriate if you have a constitutional violation and you and you have no damages you have liability but not damages right i mean he's the prevailing i don't question that he proved liability but he didn't prove damages which is why he got a buck we don't question the fact that he's prevailing party and we don't question the fact that this verdict is only what it is that is  there's a finding that is a violation of some unspecified constitutional right so we also know so you don't want to go back you want to just say that will you want to order the entry of as a no fee because for our tells us that in the case of nominal damages the usual fee is no fee that's your argument yes and i want to say this your honour's the second element we talked about that we referred to it about the significance of the legal issue and why you can't make that determination on this record because the jury didn't and we can't go back and recreate with the jury did they answered the questions that were put to them their standard third circuit court of appeals model jury charge and into raga tori's that does far as it went here and as for the third and last part of the test for  o'connor factors about a public purpose a case accomplishes a public purpose as opposed to simply then indicating the plaintiff's individual rights when it vindicates the rights of others creates new precedent deters future deprivations provokes a change in the defendant's behavior of which we can't know if i may just been assurance we can't we can't make any we can't we can't see any of that here because of the insufficiency of the findings on the verdict by the jury but judge irene us didn't make a finding on the public purpose aspect of what justice o'connor wrote he made a the public purpose and he thought it was all related to the handcuffing and we're submitting to mr brunow doesn't know i don't know touch irene a still i know you can't move then why didn't you move before the jury to have the verdict sheet made clearer so you know you'd understand what the verdict would say when they came in if certainly if mr bruno had made the argument that he wanted special interocular you're the one  would you begin with my question that i asked opposing counsel could could first i guess do you accept my premise that what we have here is cloudy yes all right then why not send it why not is it the obligation of this court to try to clear the air and send it back for the able trial judge to exercise his discretion consistent with whatever clarification we see fit to give him on the law well i think that i agree with that i think but the clarification should be  that with regard to once he makes his determination which should not be disturbed by this panel in fact counsel given any reasons as to why it should be disturbed well with what it's missing if it's a misapprehension of the law though if i mean what we're judy kidding here with her argument is on the propriety of the fee and if we're going to clear the air regarding the fee there's a chance that the judge in the light of new guidance would would look at a lot of things differently couldn't he do that no that wasn't our we didn't appeal we didn't appeal from that they had attempted to fire and i think in there there's nothing in there a brief that you know in this case or you know in our appeal they have filed something which they tried to bootstrap that argument on their original appeal but they never filed an amended notice of appeal and they never filed a separate appeal from this particular judgment of our attorneys fees that was entered and over that that was all way that that issue would be waived and that issue is not before you have no jurisdiction on that particular issue well rule four a four b one says of a party files a notice of appeal after the court announces or enters a judgment but before it disposes of any motion the notice becomes effective to appeal a judgment order in whole or in part when the order disposing of the last remaining motion is entered doesn't that it's show you're wrong in  for the trial judge and in this case judge a reduced determined that it was not the minimum as you know it so that would be the judge's role of the trial judge at all not the jury's role to determine whether in fact it was a significant legal issue but let me let me ask you this question ye because there's a verdict satisfy a significant legal principle by making a finding of what the lawyers are so i don't think that you can reconsider what his reason i think he should he has some he has discretion there and i don't think he abuses discretion making that finding and i don't know that you should should upset that particular finding itself but be it as it may i know what he says here that he said he does he goes further than that he says that the case involved handcuffing of an arrestee and action of law enforcement officers repeat on a daily probably you know the length of time over an hour hands behind your back complaining being crumpled into the back of a police rewarm you have no idea for all we know that jury sat in the room in the first two minutes they said we're not concerned about the handcuffs being too tight but boy that seemed pretty no liability one insisted on liability and they compromised and said well we'll we'll go for liability if we give the guy but my point is we have no idea in the world what that jury was talking about so to tell us that it was a handcuffing is  a fallacy well that's one reason why you have to defer to the trial judge he heard the testimony how could how could the trial judge correctly conclude it was because of the him cuffing he knows no better than any of of us in this court if i may this was not a garden variety excessive force by single i billet cases had to discrete excess of forces putting to the ground and the handcuffs to discrete bystander liabilities the interpretation the only logical interpretation is taken into the ground one officer committed excessive force the other one stood by bystander liability handcuffing the second officer the second officer put handcuffs on the first officer stood by that's the only way you can get two officers to have to excessive forces and to bystander liabilities when you have the trial judge also understood that clearly because you know he was there he just the whole way the case went down they were two discrete acts of excessive force you've an unusual case i think so especially when you consider the vice in a liability aspect of it for the one hour because there's a there's an issue in the law about handcuffing which is used every day how much is excessive force but once it goes to the jury in the jury determine this case even without injury is excessive force that is a principle that this judge says that's an important principle that police officers should know you can't use handcuffs in this way or for this like the time and a second officer just can't stand by and allow that to happen and that's an important state with that should go forth and that's why i believe he determined that this is not of the minimus case but you know that there are other factors involved here that make this more important than just the quote the garden variety one dollar excessive force by rights i mean maybe should've gotten four dollars one for each discrete violation of the fourth amendment but but you know but nonetheless i think that that's what makes this a little bit different and the judge heard the testimony and heard the credibility of the witnesses and i think it's clear from this  experienced panel that the you don't get a decision like this unless there's credibility to the terminations found in favor of plaintiff against the police officers and you know with regard to damages well kay fine maybe they felt the fact that he had been a sign painter led to the radio problems that he had his wrist and maybe that were true maybe they felt there wasn't any worse than what he had going into this case but his mind it was ok but nonetheless there were these four discrete fourth amendment violations right thank  the jury whereas when you read the verdict it's a general verdict that very well the city it was broken down into do you find this officer you know well first of all it was agreed to by counsel you know what the verdict sheet was i mean he had it's much input into it as anybody else but but it did ask about did you find officer pelley commit excessive force yes or no did you see officer smite excessive force yes or no did you submit officers a pilly