good morning your honour's frank gilmore on behalf of the appellant's citizens for free speech l l c and michael shaw i would request to hold three minutes for purposes  predominantly to address the consolidate appeal related to the award of fees may please the court counsel your honour's at a minimum this court to reverse the decision of the district court in dismissing my client's claims and remand to the district court for further instructions in accordance with a correct application of the younger doctrine but more fundamentally to allow my clients the opportunity to develop a record to address a claim which to address the dismissal of my client's claims on the basis of younger for which they had no opportunity to provide any briefing i will ask the court today to go one step further and that is to clarify the confusion between the part between the county the court with respect to the correct application of the younger doctrine with respect to various exceptions that have already been established by virtue of the record albeit a scant record night circa two thousand and seventeen k says that if the court is to to entertain a rule twelve the motion to dismiss claims so a spontaneous the court must give the parties the opportunity to provide a written brief addressing the issues associated with the court's proposed dismissal in this case neither party in prior briefings indeed neither of the court addressed in any of the prior substantive issues addressed in this  st be the district courts record below has not established that all five of the correct younger abstention standards must be met for example there is no record below your honour's that the state administrative proceeding what we have called the abatement procedure was ongoing at the time of the commencement of the district court litigation what i mean by that is the the authorities your honor suggests that if nothing substantive has occurred in the administrative proceeding at the time in which the substance of the federal court action action and by that of course i mean the merits of the federal court action have already engaged there's question as to whether or not that was ongoing in this case the record is clear there is not much record with respect to the application of the five elements but in this case it is clear and that is the district decided that the county agreed to postpone the administrative hearing that had been set in order to proceed with the preliminary injunction hearing that the plaintiffs had filed in other words the county consented to the district court engaging in a substantive review of the merits of this case before the administrative action was well you know you moved in the federal court against this balloon or injunction right that's correct they could have continued on with this administration proceeding they they could half and they just agreed to hold off while you try to seek an injunction from the federal court that's correct and in doing what is that way does that mean that the that the proceedings  not ongoing because they had simply here they just agreed to a stay while you that's correct that's correct that there is authority in this circuit that suggests that if the administrative action is suspended for purposes of addressing the substantive claims that are raised in federal court that the procedure is not ongoing your honor the purpose of this line of argument is the district court never gave the  ability to raise these issues indeed the district court simply said here are the elements of younger abstention the district court cited the incorrect elements of younger abstention for purposes of civil cases and then said it's obvious based on everything the district court has reviewed that younger abstention applies that's the st and primary care and when that is couched under rule twelve b that deprives my clients of the ability to address those issues or even better your honour's  mend their complaint potentially to address issues associated with what the court believes is younger abstention that there's a secondary issue with respect to younger abstention that that neither the county nor the court squarely address and that is that the court acknowledged that the parties and the court overlooked the possibility of the application of younger abstention from the commencement of the case until the nd motion to dismiss had been filed and decided the authorities on younger abstention suggest that if substantive determination of the merits of the federal claim have proceeded then application of younger abstention doctrine is inappropriate in fact where for example in this circuit where a preliminary injunction has been granted the thirty's are that the district court cannot apply younger abstention because the court that was all i thought that matter was all resolved by the time th this proceeding took place which matter your honor we the district were granted an injunction the st time and later vacated it after they changed the stance you know your honor i'm referring to the injunction on the instant case so there's a there was the tw fourteen case with judge bryer that's not the injunction i'm referring to what i'm referring to is the instant case which was filed in two thousand and eighteen june initially upon the filing of decision on the merits and in fact that decision the order denying your honor the order denying the motion for a preliminary injunction made competent if you did you consolidate a hearing on the on the injunction was not issued that's correct other factors that that apply that's all the court was doing the court made findings that the that were then of course incorporated into the counties argument on motion to dismiss with respect to the court's assessment determination on the merits of plaintiff's claims and the argument i'm making now as it relates to younger if the court makes substantive findings with respect to the merits of the case that forecloses the court from the ability to then  they they can't deal with the younger anymore is that what you're saying what i'm saying is that the circuit authority in this case is somewhat of a continuum and what the cases say is that if the court for example grants a preliminary injunction that for ever forecloses the court from being able to apply younger what the court then says on the flip side is the denial of a temporary restraining order may or may not reach the level of a some city of determination for purposes of whether younger could be applied after that fact question that has to be determined in the district court through the presentation of the authorities associated with that continuum that's one of the primary contentions here is that if the district court proceeds with a case and make substantive determinations which ultimately led to the dismissal of my client's claims then there is a question as to whether or not younger abstention should have applied and the point is the court never gave my clients the appellant's the ability to squarely address that issue all the district court said was let me ask you what point did the district court writ invoke younger adds engine procedurally the very st time younger was it  invoked was in the order granting the nd motion to dismiss which was seven months into the litigation action commenced concluded judge bryer entered his judgment in favor of my clients and awarded my client's attorney's fees subsequent to that the county reissued the notice of violation to my clients under the new stand under the the revised statute but tellingly cited the exact same code of the provision of the alameda code that was litigated in the two thousand and fourteen case isn't that isn't that the provision that with the by the provisions that were cited in the notice was not revised the two provisions that were cited in the notice were effectively the county's prohibition for violating the zoning laws they did not cite the section in their notice of violation that was associated with the amendment that's that's not accurate what happened was the city the county reinitiated its violation procedures against my clients and then my clients took that and took it to the federal court and said these the counties efforts to continue its abatement efforts should be barred by doctrines of race judicata the plaintiffs then filed a motion for polygamy or injunction asking the court to apply race judicata and rule thirteen to prohibit the county from proceeding no car no conversation no an address of the younger abstention the court addressed the preliminary injunction squarely on the merits of race judicata and rule thirteen a only after rule thirteen a which the and i'll save that for rebuttal but to answer the your honour's question this circuit's authority on the application of rule thirteen a and race judicata in the offensive nature in which my client asserted it is is unsettled and so at the very least we would ask the court to remand for purposes of addressing the five elements of younger including exceptions you want to address the twenty three that you i'll handle that  being sought for attorney's fees and this right in this case the civil rights plaintiff is being sought for attorney's fees the court has to find extraordinary circumstances and the court has to find that the claims were utterly without merit the court misapplied that that the court can but what the court did was dismissed on the basis of younger and then in the response to the motion said that this younger abstention was so obvious and so blatant that you couldn't have possibly thought you would get a pathway to federal courts in light of younger and notwithstanding the fact you abstain have can you order fees in the st place i mean that's that's a question that again raises the issue of we litigated for seven months if the court had raised at  the st instance to a sponsor in response to the motion for preliminary injunction this is a younger abstention the case gets dismissed and there is no one hundred thousand dollars in fees incurred so your honor i think i agree with that had the court properly applied younger we wouldn't have a fee issue but the here this lawsuit the nd lawsuit on the same subject involved three different claims st amendment claims equal protection claims and they are what they styled as a due process claim which was in fact the rule thirteen a llegation all of these claims have been dismissed plaintiffs have not appealed from the district court's determination that the equal protection and st amendment claims were both meritless and barred by the prior litigation because they were actually litigated in the prior lawsuit the only thing that's left here your honour's is is this rule thirteen a claim which they have called the due process claim they've never cited any authority for the proposition that that has anything whatsoever to do with due process so i just want to make clear there dismissed i want to point out your honor that the court that claimed the only claim that's left in this lawsuit is defective in a host of ways it's not just younger that we're talking about here at all the claim is barred by race to cut it because they could have asserted it in the last lawsuit a judge bryer in the in the st lawsuit held proceedings at the end of the lawsuit about whether he should continue an injunction against the county's abatement proceeding that would have been the time for the pla assert that the county could not continue with that proceeding because they had failed to raise a counter claim they did not raise the claim as you think that do you think the district court was right in that in applying the younger i courts have repeatedly held it's not your signal and that goes to your honor's question about how the district court could issue fees the district court retain jurisdiction here which was perfectly sufficient to justify the award of attorney's fees and the fact is that claim was barred court said these claims are without merit right well my st response to that is your honor this is the st i've ever heard of that argument you'll search the opening brief and i believe the reply brief in vain for that i have not ever heard this argument before also the to the primary injunction proceedings made no determination on the merits i don't have a case handy but i'm quite sure there are cases out there saying a district court's determination of likelihood of success is not at all a decision on the merits plaintiff is attempting to blame us for agreeing to stipulate to to not take action against them while the the prisoner injunction motion could be litigated the motion was litigated the court denied it because the court determined that they were not likely to proceeding well the the i mean you mean in response to the motion to dismiss that was the point at which the court invoked younger at court and did not invoke younger in response to the point preliminary injunction well was there any need at that point th need to invoke younger later on form for five months later because the the action remains a collateral attack on an ongoing state administrative enforcement proceeding i mean it's absolutely the there there's case so far absolutely your honor if they had gotten to trial if they had to rule if we'd gone through a motion for summary judgment perhaps i don't know the extent of the law on this because i've never had to confront this argument before because it wasn't presented in the in the pla you're right yes those are you those are my clothes are those in your view of those consistent or not oh i think they're i think they're completely consistent because they all agree you've seen but then decide the case it's just another route it's just another reason why dismissal is appropriate i guess i don't i take your point your honor that if this was if this one question whole idea is you're not going to reach the merits you're going to let the state court that you're going to let the ongoing state proceedings go to completion but the purpose of younger your honor fundamentally is we're not going to accept a collateral attack on an ongoing  younger abstention the court is to dismiss correct with prejudice i believe that is correct and what you know is i want you to find a case that says that ok i believe scenery my hotel versus the city and county of san francisco may have had that but there were two rounds of litigation in that case so i can't promise on the case but i think again your argument i want you to provide the court with an absolute a letter that says this case hol that if younger abstention is granted there appropriate thing for the district court to do is to dismissed with prejudice i will i will do that your honor and i will apologize in advance if i cannot find that case well it is that would depend on there being law saying that you can't do that once you decide younger applies you cannot do anything else in the in the litigation and i am not aware of any of any such law and it doesn't really make sense with that when you consider it in light of the fact that younger is not jurisdictional what your honor seems to to be describing is a situation where there is a article three defect in order to get these you have to be the prevailing of the stench and under younger fits within the i don't we have a case saying that dressing just this this missile based on younger abstentions signifies of the court declined  you're on is if i may address the jurisdictional issue st of all it's clear from the reading of the district court's order not just in the order dismissing the claims but also in the few order that the court believes the younger abstention doctrine is jurisdictional there's citations both in the record as it relates to the court's address of the younger abstention doctrines and self the elements and with respect to race judicata the district court says younger prevents me jurisdictionally i insert the word jurisdictionally but it's in certainly from the language that she can not the district court is prohibited by the younger doc younger abstention doctrine from even entertaining my client substantive claims well here is really he says nothing about younger kids there federal court jurisdiction it's just that the court is not going to exercise jurors that's correct that's all younger is it's not and in the younger younger you put it on hold and i think our case law says that you dismiss it but you don't dismiss it with prejudice i yet the court dismissed it on the merits with prejudice based not only on younger but also on the substantive res judicata issues and then said because of that i'm issuing fees yes you have a view as to wh i can't speak to that what i what i would say is my understanding of the circuits authority is that if the court elects to abstain the court should have abstained the problem is the court abstained st too late because it had already made not as the as counsel says determinations on the merits that's not what the circuit law says the circuit law says to term and substantive issues which were certainly addressed in the preliminary injunction and the nd thing is the county never raised the younger  on doctrine but as soon as the court mentioned it in its order deny dismissing the claims the county jumped all over it and said well of course younger applies of course it's so obvious if it were so obvious why did it not appear until the count county had already filed for briefs on the issue did you mean is the argument in your blue rebut the the number of precisely the arguments that we made your honor specifically were that the court had not given any opportunity to the parties to develop the record or not this state proceedings were ongoing that was raised in my reply brief and it was raised in the in i believe the san jose chamber case regarding the split of authority as to