know given the exact side on that these sure that people have sue county versus national service to seventy six us at page two forty three in the i'll ask a pipeline quote from it in the language that i read it in footnote thirty one ok irrespective of the source of subject matter just action i get that how do we know that attorneys fees are not i don't see if healable are not properly available in state court there's to say there are two ways to make this the same you don't get tourney fees either place you get them both places so just saying they're the same doesn't get you there but the united states supreme court has long the federal courts shouldn't deny jurisdiction yes you say that the answer is and it should be the same in both but you get fees that's correct but why do we get fees i understand the same part but what's the argument as to why there should be it's clear how do we know that is clear and how do we know that the state court would have been correct in so doing is that the first point i think that your memory appears versus rials is instructive because like this case it was a state because to some degree i'm not i'm not made up my mind on the question but sometimes when i'm trying to sort my way through this sort of in the abstract whether or not you get attorney's fees to enforce a federal law the substantive federal law may be a question of federal law because to the degree that your furnishings are available or not available that very much affects the degree of enforcement so it's possible but i don't say i segment of this was a benefit of three now i get out the six point seven million dollars down there i'm i'm wrestling with some of the same issues that my colleague is here we have a situation and as you know i was in prophecy days of the very beginning so this feels like a child to some degree i we are not we are dealing are we not in this case with pure federal law right it is not your federal law i know you say that there is some contract  action but putting that aside for the moment everything else is federal right if if there were no supremacy clause if there were no medicaid statute we wouldn't be here would we but that's true but let's focus on what is the state law and then i do want to get the time for the let me intervene for just a moment here of course we'll make sure that it really gets chance to say what they need to say we may take you over time but we want to use that to cut into your time so relax and ok your honor this is the cause of the action under section twen change in the law and said this is a new set of facts that vacate this let's send it back and then when you all settle but when we originally live in gated and the time that was spent on this it was on the basis that the supremacy clause gave you a cause of action and that's why the injunction was entered in the first place right that's why there was federal question jurisdiction but this is a situation  or just like grable where it's a state law because of the action you have federal laws essential component but i think it is important that the state of california argue throughout these proceedings that there was no cause of action directly of the supremacy clause there was only the it doesn't matter for purpose of hearing whether or not a case is in federal court the federal question first action or on the basis of diversity choice not only did i see in that case or set a sort of argument today exactly and it was a great statement to where we would have been had you been able to comply with your plan thank you we're doing that because you had it coming from the burbank airport and you should think you should have taken an earlier flight court held a superior court would have considered the action under twenty five and concluded that under state law principles which were recently have reaffirmed two months ago this is not treated as a damage action and is actually and b it's your claim that you have a right to get attorney fees directly from the state if you're successful or x correct or is under sea the only claim would be against the distribute he's of moneys on a community and a common under ten twenty one point five we believe that the federal court the district court committed legal error by too narrowly focusing on whether the underlying claim was a pure question of federal subsidy of law admittedly the statute section thirty eight of the medicaid act is a federal statute but i don't think under your precedent that that ends the analysis because the test as well explain seems to be more accurately described as for you to be successful that has to be the cause of action not that not that the attorney you get attorney fees because something else is a cause of action you are i think it has been treated that way as as once it was codified yes but i in this instance we had a ten eighty five cause of action which his counsel has explained under maria p has long since been a basis for an award under ten twenty one point five even if it was a federal constitutional or statutory law that was in force here i wanted to just you know remind the court that we not only prevailed on a particularly important part of state law gamely the sovereign immunity that resulted in the remain and that distributed seventy million dollars which frankly would have been best treated as a partial withholding and we might not have had this something that could be dealt with later by the district court just a court's order to leave me with no question that she thought she could deal with it later at the end of the case and i think that was partially because the state wasn't exactly candid about their position on ten twenty one point five they rather gratuitously objected to the withhold because they had no stake in it in accurately characterized the law on class common benefit by suggesting that the absence of a class action certification was somehow fatal that was incorrect as a matter of what the judge says it in her letter says nobody tell me why i can't do it so your ear faulting the state for its representations and i've looked carefully at the state's representations but i don't see where there was a plaintiff's lawyer explaining hey there's going to be a problem at the end of the day what the record i mean i don't understand matters but the record to me reads like nobody anticipated this outcome you're quite correct your honor it was not it was not briefed it was not argue it was a status conference it looks like a mistake and so when the state said don't worry what i think i read i really am inviting you to let me know if i'm misunderstanding the history here because i'm a newcomer to this case unlike that judgement but but it looked to me like there was a status conference and the state had put this what would sound like a pretty complicated mousetrap in motion to make these reimbursements of ten percent to lots and lots and lots of providers and said don't interrupt that process that really threw a monkey wrench into should use state law as the basis for the very distribution of the funds in and we believe that under your court's precedent that's more than sufficient to allow for an award under ten twenty one point five in your view had had you stayed in state court in the in the state and not removed to the federal court you had a cause of action under twenty five and you were title attorney fees under ten twenty one point five  right that's correct and so your position i gather is if that was true in state court then ipso facto it has to also be true in federal court well when the case is removed i think it would be for the very reasons that the people of sue county the supreme court long ago held it would be anomalous if you could work the policy of the state on attorneys fees by simply removing furthermore this would encourage for shopping and it would discourage people from taking on this kind of public interest work and there's a lot of policy concerns that are animated here there are i find very just speaking for myself i find very concerning and i don't understand how you get around  think we think the fact that the alyeska doesn't stand for the proposition that it as interpreted by this court it appears that if this is purely a federal law question with no element of state  law all then the result that the district court found is correct ok if that is not what happened here we wouldn't have the seventy million to be playing with it at that moment and to no intent have because a tentative penalty fine and your precedent it's cited in the klein decision which is very recent jones v city of los angeles found that the mere pleading of a state cause of action was sufficient to award attorneys fees under ten twenty one point five even though they never got to and this one from your perspective who actually has a good it was purely federal law here you think ten eighty five gives you a stay cause of action which distinguishes it we've had steak houses i've been prosecuting state cause of action for the five for forty plus years  and that mainly enforcing federal law and resulting in the award of attorney's fees if we are successful this in our view is no different we we not only pled the state cause of action we effectively prevailed it says as your honour's  aware because the they kading of the decision by the supreme court didn't in any way undermine your ruling and that was all modeled up in and packaged in the final settlement where everything that we had sought we obtained including the only practical result is to resolve the policy issues and the legal issues in favor of the petitioners and interveners requests under ten twenty one point five because there are important policy considerations and they shouldn't it shouldn't change the result well i don't understand that argument i'm making i'd i'm asking a different inquiry and that is and that is that of course that the court doesn't have jurisdiction over non parties who receive this ten percent and arguably we're over certainly opposing and certainly doable to reward the fees out of future payments the only problem is that the identity of the providers changes over time your honor it's been ten years and now a hot one how would you your be under the attorney fees subsection if you look at c it makes it clear that the state when there's a common benefit attorney if you claim it's illegal under that contract to require the state to change its pattern of payments and so on and so on i gather assuming that is very point that somebody is going to try to change the future payments but that doesn't affect you though does your client under b or does he also applied to your attorney if you so well we i would i believe you run into the same problem yes you have jurisdiction over the director but whether that's sufficient to put them pull the money back from the providers i think was the problem the decision on their behalf to be given notice and an opportunity to be heard i don't i think it's not an easy problem to fix now and we did and we don't with that on the hospital side here other than forgive me what what under see we did actually have a separate motion for the hospitals the court was bothered by the lack of jurisdiction and we did receive encouragement to settle by the district court and we did and they voluntarily paid it but we were dealing with one hundred fifty providers as opposed to maybe one hundred thousand right you've got to give given the c aspect of it and i don't want to i think all of us will probably be suggesting this one point or another this is the problem of doing surgery with a meat a something more specific at least from your perspective is there any interest in sitting down with the state to see if you can mediate this at some point here i know you didn't get it done before but a lot of water under the bridge do you think since or the possibility of pulling money back from recipients that's a something that should be explored well you know i never i'm one to dismiss any option to solve a problem that's how we solve this case and settle we spent two years in mediation tonight circuit with the offices of the ninth circuit that district if they were as animated in opposing the withhold for one hundred thousand dollars of fees back in two thousand and ten and i'm suspecting that that we will run into the same same opposition that it's just too troubling but i you know it i don't think is a but that could give me was that for the en route that was that mediation before or after the district court said into the record i'd give you fees if i could you did a good job and you know this was this was the undermining marriage settlement that occurred just before that the sequence was we settled the underlying merits we reserve the right to pursue attorneys fees and good afternoon susan carson from the office of the attorney general representing the director and the departments the hospitals because because appellant's are not entitled to seek fees under either the supremacy clause or the medicaid act they now attempt to recast their case it was the supremacy clause no you told me that you can't bring a suit under the supremacy clause so it has to be something else i'm sorry your honor i guess i didn't understand your question yes you may bring a suit under the supremacy clause but you must have some substantive it well this is difficult because in this particular case the supremacy clause was used to enforce the statute generally the supremacy clause is used to defend and if  party is going to be protect potentially prosecute under state law they may bring a case i suppose they're going to bring case to say that that would be in violation of the supremacy clause because federal law some other federal law so you're telling me th rosa hospital versus can't in which the the state court of appeal ruled that farm strong applied in state court as well and that therefore you could not use ten eighty five to one for security hey does that mean if they had filed this suit now tomorrow the very same suit you would not been able to remove it no we could have removed it could have been is still federal law but still federal substantive law we would still this court still have federal question jurisdiction what i'm saying is if they filed in state court in the matter state in state court they would not have been successful that now it is not thirty days not enforceable and this court's decision amanda's pharmacy claire menace pharmacy claire made it clear that the action is an e p a action against the federal agency let me ask you this then your opponent suggests that an eighty five is the cause of action that could be used to enforce the what your position on that well first of all ten of the five is not hundred three action well first of all this court's decision in sanchez versus johnson which now i'm asking for not the name of the case i'm asking for the rationale or the rationale is because it does not confer any private rights of action and it was congress did not section thirty eight or thirty a i don't think you got a private cause of action to the combination of those two things that's correct your honor given well then why do we then have a cause of action to produce seventy million dollars at the time your honor it was recognized that this court this panel with judge reinhardt found that you could use the supremacy clause to enforce thirty day and at that time this court found that the state's affirmative perspective does that undermine the fact that attorney fees by the bend do based upon the success of the earlier claim when the law was not different i don't believe so i don't believe so dismissed i don't believe that the plaintiffs were ever intitled to recover attorney's fees under federal law this case was solely litigated under federal law under federal question jurisdiction in federal court where you could federal question jurisdiction sometimes when the cause of action is not a federal cause of action  just substantive federal issue in the case not necessarily that it has to be the federal cause of action well that that that's correct your honor if there is a substantive state law claim in this court exercise a supplemental jurisdiction under thirteen they have been titled attorneys fees well i believe that they probably would have been titled to seek fees i don't believe they would have been entitled to the fees given the requirements under ten twenty one point five but the fact is that  in cork they would have i don't think that i don't believe they would have been entitled to the fees but i believe they would have been able to seek the fees do you think they would have been entitled because the puny essentially there were the puny and the pick uni ery interests in this matter far exceeded any attorney's fees by the palin's own characterization here this case is worth thirty three three hundred ninety seven million dollars and under california law and everything i've ever seen under ten twenty one point five  court because attorneys fees are related to the substantive law that is the basis for the action so you're just a call so in other words if you have this court had exercised supplemental jurisdiction and there had been a substantive state law claim matter the source of jurisdiction it's common shorthand to say you supposed to get the same answer interesting cases but the rule is you get the same answer period irrespective of whether the source of jurisdiction and federal court is a diversity of federal question i'm sorry ponent if i understand you correctly you're saying that neither ten twenty one point five or ten eighty five constitute a cause of action they correct that's correct under no circumstances no it's a procedur they both are procedural mechanisms and i don't get what case would you cite or cases would you say to that effect i'm sorry i don't i don't have the cases cited for ten of the five but i believe that there are in our brief as well as in the district court opinion but i one of those people the olds which says that it does not from state court to federal court does not change the underlying analysis and that is true if you look at both this court's decisions in bass and in gillum and both of those cases they were originally filed in state court and removed to federal court and it came time to look at fees both court said you look at the nature of the substantive claims and denied fees under state law i would also like to clarify something dangerous he said in the jones case this court actually dropped a footnote and said we're not going to consider fees under ten twenty one point five because none of the relief that the plaintiffs obtained was under state law and they got fees in one thousand nine hundred eighty eight because they had a federal law claim then you  then the department asserted an affirmative defense when they sought retroactive monetary believe and that was sovereign immunity which derives from federal law under the u s constitution and then when this support just look to see if there was a waiver looked at this court's decision and embry and determined that there had been waiver and the fact that the state sovereign immunity defense was rejected by this court does not somehow transform plaintiffs federal law it sounds that ten the five constituted a waiver of sovereignty in state court and that is that is not accurate and those three cases that are cited are very complicated but there has not been a state i'm losing my numbers that just ten twenty five we held that state the state law overrides the state sovereign immunity you say that's wrong we held that sounds like we held that there attorney's fees with respect to the amount of monetary reward that was award that was available i'm sorry when we're discussing attorney's fees based upon the monetary award that was that was good that was given in the settlement seventy judge christine was sort of asking was asking about the motion to set aside and i just like to we did you did ask for supplemental briefing we did we did do that but the intervenors or the  ok and i just want to make it clear there was no gamesmanship this court had ordered that that be paid to the providers the district court ordered the state to pay that to providers and that's what that's what we did well but i didn't suggest there was gained friendship far from it it looks to me the and i dug in pretty well into the record and looks to me like no one anticipated this outcome honestly and that the district court to me didn't i'm convinced that she thought at the end of the day she's going to be able to look at these well it's actually very interesting because i went back to and the record at page three seventy three the pull of the part of the plane both the pilot said if the seventy million common fund which was created by efforts accounted for plaintiffs interveners is liquidated before a motion for attorney said was counsel tell it to the guys who litigated the case for eight years i mean it's got to be forefront and it's terribly concerning again i am just speaking for myself but for you to say that fees morning issue really well i think that that i want my feel or point was just christian is that that's what they thought and so in the settlement agreement it is carved out for them to recover that money directly from the providers and the interveners did just that also as we put in our set a supplemental absence of record all of these council were paid so they i mean the interveners council had an agreement with both the california hospital association and the and the california medical association mr freeman was paid for mr carmen so looking at this now quite frankly i was shocked when they filed under ten twenty one point five this is this is this is federal question juristic this is federal claims in federal court and there's no state law attorneys fees so they've been paid so there were there were parties out there the plaintiffs were willing to pay attorneys to bring this lawsuit that's why i was talking about ten twenty one point five and what the real purpose of that is i'm just making the point that they did receive payment whether  thousand and eight or two thousand and nine he got to two hundred eighteen thousand i don't know if you got money after that i have no idea ok nothing to indicate that he did in our record right no but they wouldn't have any reason to tell you ok thank you thank you you've got five managed to use as you like between the two of you but there would have been recovery of attorney fees into the state statute a lot of the time just now was spent by issues that aren't before this court we're talking about what was the recovery of lawyers and there's things in the brief that mr freedom recovered signal less than two hundred thousand dollars missing four million dollars in attorneys this but that's not before the court now because that wasn't the basis of the district court judgment the attorney for the state wants to say he's not entitled to attorney's fees because he had a peculiar game that wasn't the basis of the district court decision added what do you think the ruling ought to be i know that should be a big surprise that i would ask that but what what it what it what specifically if you were here writing the opinion what would you want i want the court to say the two points that i mentioned  of the settlement agreement in the attorney fees section really plays a little role here because you've got an a and b claimant and i gather you believe that you could recover if you're correct you could recover attorney fees directly from the state without having to recover them from the previous recent paeans of the thirty eight funds that right well i think it's important to separate the two different arguments that are made in our brief i have focused my entire argument in terms of the california attorney's fees statute right i do so under the common fund we don't believe that the settlement agreement takes away the ability to appeal that two thousand and ten ruling we think with the settlement agreement that is if they wanted to be an application for fees of the common fund that had to be in thirty days and that what if we decide that that was an abuse of discretion that that was an abuse of discretion then you could remand back on that issue as well and then it would be a question of what would be the appropriate remedy to make the plaintiff whole right given that which has not been supreme court and the reason i'm here is that mr friedman put thousands of hours in this and recover the appropriate attorney's fees if we want to encourage lawyers to take these kinds of cases that benefit millions of people attorneys fees should be available and judge smith raised the possibility of mediation i don't know if we heard from the state on that or where we're leaving that but with that's even a viable option to go forward you know this is out of out of order does the state have any position