this Pizzolvania and Mr. Stanley whenever you're ready we'll hear from you. Good morning. May it please the court William Stanley on behalf of Pizzolvania County and the Pizzolvania County Board of Supervisors. With the case before you today and in light of the Supreme Court ruling earlier in March versus Chambers and now the most recent one of the Supreme Court regarding town of Greece versus Galway the issues before this court are three full. First are the invocations that were offered by the Pizzolvania County Board of Supervisors by the members. Do they fall outside the legislative prayer tradition recognized by the Supreme Court and within that is who the prayer giver is and the legislative legislative setting relevant even to the inquiry. And finally in the light of town of Greece ruling has Hudson main to prevailing party status after the ruling was handed down. Why isn't the first question why do we have jurisdiction over this appeal? Your Honor there has been a motion to dismiss filed by the other side in that the argument has been as we have acknowledged one under the case while that while that may be true we believe that the wording of the district court's order had language in it that made it a continuing order. And based on that and after consultation with other attorneys those post trial motions were filed that one for attorneys fees was filed immediately thereafter. And of course, and there's a permanent injunction and says close this case and then says we're going to retain jurisdiction to supervise injunction. And certainly on our and based on that point we filed a rule 60 be motion
. I'm asking you out you're saying that this is not a final order because the court contains this language and I'm suggesting to you that that language doesn't take away from the reality of the permanent injunction. And judge I would submit that reading the case law that has been submitted I may agree with you but based on there was a two prong it was we retain for enforcement and also for the determination fees. And I think that the case is even more clear because the attorney's fees is a problem in any case where you have a final judgment and the rule explicitly says that unless you follow certain steps that doesn't affect the final of you indeed your owner and also the questionable it would have been so simple to file a protective note. Your honor you are correct in that regard what we understood at the time to be that this was an ongoing matter and the ongoing matter was a was continuing in nature. And your honor I come with my hat in hand if I by unintentionally unintentionally failed under the rules nothing nothing that wasn't already the case if it said nothing. It would have still had jurisdiction to supervise the injunction and it still would have been able to address word attorneys that is correct your own. And so the language you rely on doesn't take away from the finality and the court made it pretty clear it was a final permanent injunction case was done there was nothing more to be decided at that point except the attorneys. That is correct your honor and a motion was filed thereafter. Can you just go back before the district court and move to modify the permanent injunction based on the spring court's decision in count of grief. Your honor we did after filing the notes of appeal we filed a rule 60 B motion with the district court the district court at that time and that's why I believe we should be here and decided to take appeal was was late. How could that you're the rule 60 B motion your honor now how could that if if your notice of appeal was late at that time you filed your 60 D after the time limit had run for the notice of appeal
. Your honor I do not say sure is it we are here today on a very important issue based on the town of police ruling does he have to have jurisdiction. Here the case we're not authorized under article three section two just to hear a case because the lawyers follow we have to have an authority that gives us the authority to hear the case no matter how merciless it may be. And my question actually what was going through the fact that if you were to lose here couldn't you then go back to the district court and say we want we seek to modify the injunction because there's been additional or there's been additional clarification from spring court. Unless this court your honor determines the matter on the merits a rule 60 B motion would be forthcoming the court has ruled in the district court said that the every injunction is subject to modification or subject to a motion for holding somebody in contempt that's correct for all kinds of changes based on fact and on law yes and town of Greece had not been decided when this final judgment was then yes and as a consequence what judge Duncan is saying you go back to the court. The say the landscapes changed and file for a motion to modify we did that your honor and the court said it didn't have jurisdiction but if it didn't we didn't have it then the question is if you have a ruling here which is happens to be adverse to you then this this particular case may be done but you still can go back to the district court and seek to modify the injunction. I agree with your honor we're not we are not out of options if this court determines based on the technical filing that we were late and filing a notice appeal what I'm saying to this court. Our subject in a civil case goes to our subject matter. Yes we have to resolve this aside whether we have the power to be the bill we have to resolve that and ultimately this issue will be right back before this this court on a city of the city. It depends what the district court does town of Greece is a is a big opinion it does a lot of things in this area yes and the injunction was entered without knowledge or benefit of three town of Greece because it had been decided that's correct and so you go back to the court under you can go I don't know if you need to go under rules 60 or you go under the injunction rules but you go you can go and seek a modification the injunction at any time that the injunction is still enforced that is correct and it was correct. It was permanent wasn't it didn't have a time it was permanent sir yes sir and so what we're left with though your honor made please is that as I said the court has opined without presenting that as an order that when it didn't have jurisdiction even if it did have jurisdiction it would have determined that the prayer giver the board members couldn't give the prayer which was not a part of what the injunction was from the very beginning it didn't enter an order but it opined which gives us an indication that will be right back here after rule 60. And that is correct sir I mean you may brief it well or they may brief it well or the court may change its mind based on town of Greece
. No it was a lot of things said in that yes sir and I think with regard to the substantive issues before the court if the court is even to hear this matter we see that with marsh now it's been solidified and clarified by the town of Greece. We don't have the counting of the number of the references to a specific deity in a legislative prayer program. That is certainly an argument that you could make to the district court in the first instance. I mean should we be finding the facts now in other words let's assume we we go the way you would like us what you would like us to do is to review the injunction of the district court entered without the tentacle of Greece down a Greece and have us rule on that based on our now knowledge of town of Greece. So we would have to go back and review the facts and the injunction based on new law that the district court didn't have the benefit of that's correct. What we should be doing or should the district court be doing that in the first instance. Well your honor again I sent a motion for review by the court and I ruled that didn't have jurisdiction. We're in between two things your honor and may it please we file this notice of appeal they filed a motion to dismiss this court took it or deferred ruling on that motion to dismiss to accept our breeze. And then to accept supplemental breeze on how this case was affected by the ruling in town of Greece. And now we're and now we're here to figure all this stuff out. That's what happened here
. The bottom line is that at least putting the attorney's fees part aside is I think the opposing council agrees that there is jurisdiction here that part. If there isn't any jurisdiction to hear the original dismissal water strike in the case from the talk by the district court and there isn't any jurisdiction to hear it. That may come up later. You may be exactly right and you may be back here but at that point the district court would have had jurisdiction because there would be no appeal pending. And if timely appeal we would have jurisdiction certainly and certainly with the attorney's fees ordered being properly peeled and properly before you if you determine the first issue is not. And determining whether there is an award of attorney's fees under the prevailing party status and also the amount of fees you'd still have to determine the substance of the first issue to whether she was in fact prevailing party. And if she's not in a prevailing party prevailing party requires that you prevail on the merits that you walk out with an enforceable judgment not not just winning a battle and ultimately losing the war as this court said in Greensville women's center. And she won on that final judgment. Isn't she a title to be it not if the judgment was not proper not if the judgment was in error. That's kind of your backdoor way to get back into what will be barbed by like your situation judge AG I'm trying the best I can to make sure that any doors open for the support to consider the marriage. If that judgment was unappealed let's assume for the moment it was not timely appeal we don't have
. That doesn't mean it can't be changed by. Certainly when that judgment final judgment was. It was entered in favor of. Yes in terms of the injunction and joining the board and the summary judgment was in favor of miss us that's correct. But quite frankly when we look at it we preserve certainly the appeal if you think there were other that she wasn't a prevailing party and certainly that even the fees within those were unreasonable that there was some duplication that she wasn't the prevailing party. When she won the got the injunction. That my argument was your honor judge Neem are that it is got to be what it is right now. What is your that she was not the prevailing party. On the basis on the basis in that the courts ruling. The wrong thus proved by town of Greece later was wrong was not correct that applying the marsh standard as the town of Greece did that the district court should have come to a different conclusion not counting the times the number of times that Jesus Christ name was invoked in a legislative prayer. But rather
. And what a nice descent it was your honor and now your descent should become a majority opinion. And I believe that you're descent now should become a majority opinion on the facts and merits of this case. I think ultimately what we're talking about is that the the district court ultimately got it wrong. Town of Greece proved it later but it was wrong from its inception from March. March solidified the tradition the historical tradition of legislative prayer. So it's a final unreviewed judge. I'm assuming now that we can't review that it's a final on unreviewed judge and it seems to me at that point that judgment was never reversed. And she was the prevailing party based on what was the court that time. Right. Your honor you could view it that way and certainly we would take the opposite view that that while it is a final judgment. She's a prevailing party
. But we can see that at the time based on the judges ruling which we in with respect said that was an error. We nevertheless said while conceding that under his ruling she was a prevailing party that she was not because the judge had made error in his ruling. Respectfully that the district court did not rule properly. But if we reversed a vacated that judge. I don't know if the only vacated that judge and she wouldn't have to speak much much in the same way of Greensville woman's center. The fourth circuit case that was decided here your honor may it please. And that it reversed a lower courts ruling. The lower court court had awarded the women's center judgment and damages. The question ultimately is whether this court finds it has jurisdiction or not. And if it doesn't of course then the question then becomes within the confines of our brief. We submit that she wasn't a prevailing party and also that if we were to consider her a prevailing party that the fees were excessive
. There was one attorney nevertheless the Frank Fiebelman who has left us left this world now. But it was a real estate attorney and was over and over billing an excess of time of even what was could have been done and should have been done by the one attorney for the ACLU that was handling the case. Those were those issues are preserved in our brief alone. So that. As you file the motion post judgment for attorney or they did. David and the court entered in order and you took an appeal. That's correct sir. But even the court actually substantially agreed with you reducing the number of hours and the hourly fee. It the magistrates report did reduce the district court. Substance and that's correct. And that's correct
. We would we would submit that that that we only cut down half the tree. We should have cut down a little more that tree. We cut down more like two thirds of the. Right and not that the tree we would argue that the tree goes over on its side but never the less it when you look at the billing records this was a case I handled it this part of the district court case of myself. Miss Glenberg handled it on behalf of the ACLU and Miss Hudson. There was a lot of duplicative and duplication that was unnecessary. There's a lot of our stuffing. There was a lot of reviews that shouldn't have been reviewed and and those kind of things quite frankly could have been done just by Miss. Miss Hudson's attorney primary attorney Miss Glenberg and no one else. The court abused its discretion. I would say that it did not taking consideration in giving Mr
. Fibleman feebleman his his part of his billing. The fact that it was completely unnecessary as the Euraski analysis judge Brinkham had said that sometimes when it can be done by one abuse of discretion. That is the standard. And I would say that looking at all of the considerations of the bills that that was excessive in what was awarded. So based on that I would say that this court that I would you do have jurisdiction on an argument that I have in my brief but wasn't able to make and I would certainly say that what is that argument my argument we have jurisdiction. Your Honor I say you have jurisdiction because quite frankly we we believed and understood it be a continuing order. I think ultimately this is a decision that. When the court says it shall be stricken from the dock. Do you think that's not a final judgment. Judge it's not that that's not a final judgment that was above and below says. And then it said two things that were true regardless of whether it's set or not. One is that we get to review the injunction continuing to address as long as the injunction 20 30 40 years court has jurisdiction review the. That's correct and the second thing is that turning yes and of course you have the rules 54 58. Before B 59 and they all say that that does not extend in fact in 2011 that rule was clarified to include that but prior to that it was not. So yes sir I think that was that that's basically what we believe that. That this court had jurisdiction based on that if it if not it was excusable neglect and not intended and certainly let's not punish. Pizzle of any county this is too important initiative. And sorry jurisdictional rule understand your that's my order that's why I heard that. Otherwise you could have sent me home a while ago and saved us all some time. Thank you. Good morning and may it please the court timely notice of appeal is jurisdictional timely notice of appeal was not made in respect to the the merits decisions in this case which were a final judgment. And therefore this court does not have jurisdiction to consider the merits of this case
. One is that we get to review the injunction continuing to address as long as the injunction 20 30 40 years court has jurisdiction review the. That's correct and the second thing is that turning yes and of course you have the rules 54 58. Before B 59 and they all say that that does not extend in fact in 2011 that rule was clarified to include that but prior to that it was not. So yes sir I think that was that that's basically what we believe that. That this court had jurisdiction based on that if it if not it was excusable neglect and not intended and certainly let's not punish. Pizzle of any county this is too important initiative. And sorry jurisdictional rule understand your that's my order that's why I heard that. Otherwise you could have sent me home a while ago and saved us all some time. Thank you. Good morning and may it please the court timely notice of appeal is jurisdictional timely notice of appeal was not made in respect to the the merits decisions in this case which were a final judgment. And therefore this court does not have jurisdiction to consider the merits of this case. Moreover although the court does have jurisdiction to consider the appeal from the attorneys fees ruling. It may not do so by revisiting the final judgment that was not appeal that judgment is the law of the case. And having obtained that final unappealed order miss Hudson is the prevailing party regardless of what grief does or does not do. And so that's why I think it's not a good decision to do with this case. Now as to the amount of the attorneys fees. Again the standard is abuse of discretion. I think that the magistrate judge in his report and recommendation that was later adopted by the district court. Does an admirable job of explaining why certain requests to reduce the fees were granted and why certain requests were not. And I will rest on that to say that clearly there was no abuse of discretion regardless of what niggling disagreements may remain about the fees. So as I said this court not having jurisdiction to review the merits. I don't
. Moreover although the court does have jurisdiction to consider the appeal from the attorneys fees ruling. It may not do so by revisiting the final judgment that was not appeal that judgment is the law of the case. And having obtained that final unappealed order miss Hudson is the prevailing party regardless of what grief does or does not do. And so that's why I think it's not a good decision to do with this case. Now as to the amount of the attorneys fees. Again the standard is abuse of discretion. I think that the magistrate judge in his report and recommendation that was later adopted by the district court. Does an admirable job of explaining why certain requests to reduce the fees were granted and why certain requests were not. And I will rest on that to say that clearly there was no abuse of discretion regardless of what niggling disagreements may remain about the fees. So as I said this court not having jurisdiction to review the merits. I don't. This was not much to talk about. That's right. I mean in the event that somehow you don't agree with me. It seems like it because me to explain why I think grief doesn't alter the outcome in this case. Unless there are more questions on the jurisdictional or attorney's issues. I feel you're really arguing Greece here in the district court never had found. Yes. We're reviewing the district court position. And I must say from my own observation, I'm not speaking to the court. I think town of Greece did a lot of things. It was a lot of play out of town of Greece will have natural facts how it's been interpreted
. This was not much to talk about. That's right. I mean in the event that somehow you don't agree with me. It seems like it because me to explain why I think grief doesn't alter the outcome in this case. Unless there are more questions on the jurisdictional or attorney's issues. I feel you're really arguing Greece here in the district court never had found. Yes. We're reviewing the district court position. And I must say from my own observation, I'm not speaking to the court. I think town of Greece did a lot of things. It was a lot of play out of town of Greece will have natural facts how it's been interpreted. And so things may have worked under abuse on the order we use on the way to court as looked at how to treat the next. I think that would be ideal, Your Honor, and. Well, they have to do a file of motion to modify the induction. Based on. That's absolutely correct, Your Honor, and I don't dispute there. Up here, the two of you were going to argue prayer. That may very well be the case, Your Honor, as we pointed out. You have a status box on the court. Right. Well, it. And yes, that which seems unlikely
. And so things may have worked under abuse on the order we use on the way to court as looked at how to treat the next. I think that would be ideal, Your Honor, and. Well, they have to do a file of motion to modify the induction. Based on. That's absolutely correct, Your Honor, and I don't dispute there. Up here, the two of you were going to argue prayer. That may very well be the case, Your Honor, as we pointed out. You have a status box on the court. Right. Well, it. And yes, that which seems unlikely. But who knows what intervening events may prevent that subsequent appeal to bring us again to this court, as you pointed out. So you have a wealth of knowledge on that topic. You can just hang on to. Am I hearing from the court that you don't want to hear about the town of Greece and its effect on this case? We understand your position, but you understand the difficulties work in front of it and hearing it. Obviously, you can devote your heart and your wish and make the judge call, but we didn't hear from the length of Helen. We have read both the brief. We have the record. Is the final implementation of the state? Well, Your Honor, if that is the court's position and certainly I did. I would lay out the major arguments about grief in our supplemental brief, although I've given it more thought and have even more distinction to make now. But I certainly don't want to. The Greece court
. But who knows what intervening events may prevent that subsequent appeal to bring us again to this court, as you pointed out. So you have a wealth of knowledge on that topic. You can just hang on to. Am I hearing from the court that you don't want to hear about the town of Greece and its effect on this case? We understand your position, but you understand the difficulties work in front of it and hearing it. Obviously, you can devote your heart and your wish and make the judge call, but we didn't hear from the length of Helen. We have read both the brief. We have the record. Is the final implementation of the state? Well, Your Honor, if that is the court's position and certainly I did. I would lay out the major arguments about grief in our supplemental brief, although I've given it more thought and have even more distinction to make now. But I certainly don't want to. The Greece court. Oh, certainly not off its rocker. I'm not trying to be disrespectful. I think we have to consider it to read it in its totality and it would be very helpful for have this record to an first instance based on the facts in this case. I'm sure hearing the intentions of the appellants that they intend to do that. I think we will give our full attention in that form so that this is the proper website. Well, I appreciate that, Your Honor, and I certainly agree with you that the district court should evaluate the law based on the facts of this case. That's the ideal way to do it before coming back to this court on the merits. So, so that being the case, I will not take up more of the court's time and I will sit down. Thank you very much. Just stand the young court. Judge May please the court
. Oh, certainly not off its rocker. I'm not trying to be disrespectful. I think we have to consider it to read it in its totality and it would be very helpful for have this record to an first instance based on the facts in this case. I'm sure hearing the intentions of the appellants that they intend to do that. I think we will give our full attention in that form so that this is the proper website. Well, I appreciate that, Your Honor, and I certainly agree with you that the district court should evaluate the law based on the facts of this case. That's the ideal way to do it before coming back to this court on the merits. So, so that being the case, I will not take up more of the court's time and I will sit down. Thank you very much. Just stand the young court. Judge May please the court. I will not belabor any points that have not already been before this court. I will certainly say this that this is an issue that is important for the four circumstances determined. Whether we are here technically or technically out of time, the matter will be brought back to the district court, whether this court remains it or not. What I would say that is this that even with whatever technicality unintentional, I can assure you as well. But now that Board of Supervisors still labor under an injunction which under the law of the land now as evidenced by a town of Greece is by itself because it only focused on the content. Unlawful. It's a process for that. Yes. And even the injunction rules, I'm not sure the court was had to defer to this appeal when there's a change of the landscape. Now the court did not issue an order. That's fine
. I will not belabor any points that have not already been before this court. I will certainly say this that this is an issue that is important for the four circumstances determined. Whether we are here technically or technically out of time, the matter will be brought back to the district court, whether this court remains it or not. What I would say that is this that even with whatever technicality unintentional, I can assure you as well. But now that Board of Supervisors still labor under an injunction which under the law of the land now as evidenced by a town of Greece is by itself because it only focused on the content. Unlawful. It's a process for that. Yes. And even the injunction rules, I'm not sure the court was had to defer to this appeal when there's a change of the landscape. Now the court did not issue an order. That's fine. And you can press the court to modify the injunction based on Greece and the court will consider it and order. Yes sir. But I do believe it would be unfair to the district court to evaluate its judgment and finding based on town of Greece when the district court never had that benefit. And may it please and if I may only say this when we filed that motion to modify dissolve the injunction. What we were hoping is that would have been then the vehicle to turn away from to turn away from this court at that time and to go get that. But the court said it didn't have jurisdiction which quite frankly I believe it did. And certainly we would not have been before you twice as we may be, but we might be out for you again. The district court may well determine that after the town of Greece there's some additional fact that that has to be done and it sounds like you all pretty well got the basis of your district court briefs already ready. Yeah, you're on or I would agree with you. Judge Adrian. I don't have an attorney's face
. And you can press the court to modify the injunction based on Greece and the court will consider it and order. Yes sir. But I do believe it would be unfair to the district court to evaluate its judgment and finding based on town of Greece when the district court never had that benefit. And may it please and if I may only say this when we filed that motion to modify dissolve the injunction. What we were hoping is that would have been then the vehicle to turn away from to turn away from this court at that time and to go get that. But the court said it didn't have jurisdiction which quite frankly I believe it did. And certainly we would not have been before you twice as we may be, but we might be out for you again. The district court may well determine that after the town of Greece there's some additional fact that that has to be done and it sounds like you all pretty well got the basis of your district court briefs already ready. Yeah, you're on or I would agree with you. Judge Adrian. I don't have an attorney's face. That's hopefully one way or the other, but but I think you're right and I think ultimately the record is is not have any evidence with regard to the whole prayer opportunity. And whether the prayers preach damn nation proselytizing conversion those are issues which still have to be determined by the court. And I can assure you as I walk out of here today, I will be filing such a motion with the district court. I would ask them that this case be remanded or a judgment be given so that with do haste that we can get this issue before the district court as I was hoping to an original 60 B motion. So that this issue can be determined even a trial if it's if need be and then if one or both of us disagree with the ruling we can come and visit with you again and argue the merits of the case not rather the technicalities which were before us. I appreciate your time. Judges I appreciate greatly on what is a very important issue. Thank you. All right. We'll take a break. Come down to Greek Council and take a short recess