[00:00:01] Speaker 02:
Good morning, Your Honors. My name is Hannah Warner, appearing on behalf of Plaintiff Appellants Familias Unidas. I'd like to reserve five minutes for rebuttal, please.

[00:00:10] Speaker 02:
There are two main issues before the court today. First, I'll address our client's appeal of the district court's limited success ruling and how the district court abused its discretion there in two primary ways. Second, I'll address the department's cross-appeal and why this court should affirm the district court's ruling that the department lacked substantial justification. Turning to the first issue, the district court abused its discretion under Hensley in two ways.

[00:00:40] Speaker 02:
First, Hensley is clear that when the claims are all related, which no one disputes here, the district court can't reduce the fee simply because the court failed to reach certain claims. In other words, the court can't cut the fee based on wins, losses, or mooted claims.

[00:00:59] Speaker 04:
What was the total amount of the recovery?

[00:01:04] Speaker 02:
The ultimate fee award was $100,000. No, I'm sorry.

[00:01:07] Speaker 04:
No, on the merits of the case, not the fee award.

[00:01:11] Speaker 02:
So we were seeking injunctive relief, Your Honor. And so the net effect of that injunctive relief, there was no award for damages, but the net effect of that injunctive relief was that our clients succeeded in protecting millions of dollars in harvest wages over three consecutive years. And they also obtained three separate permanent changes to department policy to ensure that farmworkers would receive benefits higher market wages rather than the lower hourly wages that the department was unlawfully certifying.

[00:01:45] Speaker 04:
Can you refine more than just saying millions?

[00:01:48] Speaker 02:
Certainly.

[00:01:48] Speaker 04:
If you can't, that's all right.

[00:01:49] Speaker 02:
Oh, no, certainly, Your Honor. So this is in the record at 5ER 1102 in the first preliminary injunction order where the district court acknowledged that, quote, elimination of piece rate wages for apples would save employers millions of dollars, end quote. And this is also at FER 121 through 23.

[00:02:18] Speaker 02:
And to put this in dollar figures in terms of worker pay, the department repeatedly approved contracts that underpaid workers at a little over $16 per hour.

[00:02:30] Speaker 02:
when the real-world market wages to harvest fruit in Washington were up to $24 per hour. And that $24 per hour figure is what is available at FER 121 through 23. And that is a massive $8 per hour figure drop in pay which has a huge impact on seasonal farm workers where the amount of money they earn per harvest season is crucial to maintaining their livelihood throughout the year.

[00:03:00] Speaker 00:
In evaluating your level of success I'm trying to figure out should we be looking At the first two preliminary injunctions, it seems like we're supposed to look at the totality of the case, or should we mostly focus on this permanent final injunction, the results thereof that you're talking about?

[00:03:23] Speaker 02:
So your honor is correct that the test under Hensley is to look at the scope of the overall relief obtained by the clients. And so I would say that the court shouldn't look at any of the individual stages or injunction motions as the district court incorrectly did and as the department is arguing to do. because that is a litigation scorecard approach that is clearly disallowed under Hensley. Hensley rejects a sort of mathematical scorekeeping of the wins and losses of particular motions throughout the litigation.

[00:03:55] Speaker 00:
And I appreciate that, but I still – I wanted to ask why, in your view, your second preliminary injunction – was so maybe unsuccessful. I don't know if that's the right way to put it as compared to the first.

[00:04:16] Speaker 02:
So the second preliminary injunction, Your Honor, was our clients challenged the department issuing a new set of prevailing wage findings. And our clients were challenging them so they would not be published and put into effect, because those wage findings were even more disastrous than they had been when our clients achieved the first preliminary injunction order, because that next set of findings would have eliminated all of the higher market wages for harvesting fruit in Washington.

[00:04:47] Speaker 02:
And so our clients challenged that. But then the department later abandoned those regulations and withdrew them. And so the net effect was the same as if we had won the second injunction. Those findings were never published. And the higher market wages that we had obtained earlier remained in place to protect farmworkers' wages.

[00:05:08] Speaker 00:
And so basically, they were mooted by the actions of DOL.

[00:05:13] Speaker 02:
Essentially, yes. It was mooted by the department's own actions in deciding not to publish their own wage findings.

[00:05:21] Speaker 04:
And it seems to me mooted in response to your lawsuit. I don't think they did it out of the goodness of their heart just because they woke up one morning and said, oh, I guess we made a mistake. I think it was your suit that prompted that.

[00:05:36] Speaker 02:
That is our view as well, Your Honor.

[00:05:37] Speaker 04:
It might have been moot, but it was mooted because of your lawsuit.

[00:05:44] Speaker 02:
That is also how we look at it, Your Honor. And under Hensley, the district court abused its discretion when it found that issues that became moot were then counted as losses by the district court. It did that for issues like the outcome of that second injunction, and it also did it for other claims in the case where the department issued new prevailing wage regulations in 2022, and the district court ruled that because of those new prevailing wage regulations, Certain of our claims were dismissed as moot, but then the district court misapplied Hensley and abused its discretion by counting those mooted claims as losses, which Hensley clearly says it should not be done because Hensley says the court's rejection of or failure to reach certain grounds is an insufficient basis for reducing the fee award.

[00:06:35] Speaker 02:
And Hensley goes on to say, and this is also supported by this court's en banc ruling in Ibrahim, that litigants have a duty to raise related alternative claims and a full fee should be awarded when excellent results are obtained. When the claims are all related and there are excellent results, a full fee should be awarded. But that's not what the district court did.

[00:06:59] Speaker 03:
Instead, it – Can I ask you – you say that your conservative estimate of fees is $250,000. So how are you viewing your success to get to that number? Yeah.

[00:07:13] Speaker 02:
So we provided some examples in our briefing of how the district court could have looked at the fee records in a way that would be in keeping with Hensley if this court were to find limited success. We don't think this is a limited success case. We think this is an excellent results case, which under Hensley and Ibrahim, when the the case law says a full fee should be awarded. Now, if this court were to find limited success, then we say the district court still got the math wrong.

[00:07:48] Speaker 02:
It still failed to, as Hensley instructs, reasonably relate the fee amount to the results obtained.

[00:07:59] Speaker 00:
But do we look at what you sought from the beginning? I mean, it seems like you were asking a lot in your first preliminary injunction request. So how is that evaluated?

[00:08:14] Speaker 02:
So the only request for a dollar amount was in the attorney's fee request because we were pursuing— No, no, I'm talking about the injunction relief that was sought initially.

[00:08:24] Speaker 00:
Okay.

[00:08:25] Speaker 02:
I'm not sure I'm following your question, Your Honor.

[00:08:28] Speaker 00:
What Judge Mendoza reviewed, how does that differ in terms of the claims or the requests that were made in that preliminary injunction from the ultimate permanent injunction that was granted?

[00:08:44] Speaker 02:
So Judge Mendoza, in the first preliminary injunction order, with that injunctive relief that our clients obtained, that prevented wage loss. So we weren't asking for a recovery of damages or wage recovery. We were seeking injunctive relief to prevent impending wage loss in that next harvest season. And so the amount, the first dollar amount that we requested was in the attorney's fees petition in order to recover the fees for hours that we reasonably expended due to the successes, the excellent results over the course of litigation.

[00:09:22] Speaker 02:
And so to further answer your question, Judge Coe, we gave certain of those examples in the briefing about how the district court could have more reasonably related.

[00:09:32] Speaker 03:
I know you don't want to break it down by phases, but it might be easier if we did. Let's say we say on the first motion for plural injunction, as the chief just pointed out, you did win on one claim but not on others, but you got – let's say we say that's a win. But should it be a full win or a partial win based on the fact that at least four claims, I think, or at least three of the claims were dismissed? Dismissed.

[00:10:02] Speaker 02:
So we provided a chart of our claims in our reply brief at docket number 36. I know.

[00:10:09] Speaker 03:
The notice and comment claim you lost, worker survey claim you lost, sample size claim you lost. You only succeeded on hourly guarantee claims. So do we give you 100% for that or not? Because the overall result may have been the same even if you had prevailed on the other three. What's your – help us think through like the first PI.

[00:10:27] Speaker 02:
So I'd like to – I can address how to think about how the district court could have looked at different stages of litigation. But I think that it's important to – clarify some of the facts around how those claims were ultimately resolved. And so we, in fact, did not lose the, so even the notice and comment claim, claim number one in the chart, it was denied at the preliminary injunction stage, but claim number one is a related alternative legal theory to claim number two upon which our clients prevailed.

[00:11:00] Speaker 02:
And under Hensley and Ibrahim, related alternative legal theories should not be counted as losses and used against to deduct the fee award when the clients have prevailed on the related, have a related successful claim. But the district court abused its discretion by finding, you know, counting these as losses.

[00:11:21] Speaker 03:
What about the worker survey and the sample size claims? Are those related to the hourly guaranteed claim?

[00:11:27] Speaker 02:
So all of our claims are related. The district court correctly ruled that all of the claims are related.

[00:11:31] Speaker 00:
I appreciate that argument. Let's just assume for momentary purposes that they're not. How would that then be calculated? If you could help me, I just want to understand how you think that process would work.

[00:11:44] Speaker 02:
Oh, certainly, Your Honor. The case law is clear, Hensley and in this circuit's case law, that if there are unrelated claims that are unsuccessful, then the district court can deduct the fees for work done on those unrelated claims. However, if you have related claims... and you have losses on some related claims, but they're related to your successful claims, then under Hensley and Ibrahim, the district court should not reduce the fee because the work done on those related unsuccessful claims still contributes to the benefit of the prevailing success on the related claims.

[00:12:21] Speaker 03:
Do you get any fees for the modification of the PI order? Is that new success or is that just, you know, the parties negotiated per Judge Mendoza's order and came out with parameters for the next survey? I mean, how do we look at that?

[00:12:36] Speaker 02:
So thank you for asking that question, Your Honor, because we should have received fees based on the successes in the modified first injunction order. That modified first injunction order memorializes several pieces of permanent policy relief that our clients obtained, and it also agrees to reinstate higher market wages for the 2022 harvest season.

[00:13:03] Speaker 02:
The district court, in its fee order, it references the modified first injunction in one sentence in a footnote that it happened. And the district court abused its discretion there because it should have looked at the relief that was obtained within that modified first injunction order and under Hensley looked and added that to the scope of the overall relief. to find that our clients had obtained excellent results, but the district court ignored it. It was incorrectly focused on that litigation scorecard approach where it's just looking at the outcomes of motions but not thinking about what was the actual relief that our clients were pursuing, what was their primary objective, and was that obtained or not.

[00:13:43] Speaker 03:
So the two times that the Department of Labor issues new regulations or amends or revises its regulations during the pendency of this lawsuit – you think you should get credit for that. That's a win, right? Is there any evidence in the record that they would have made those changes but for this lawsuit?

[00:14:01] Speaker 02:
So we wouldn't characterize them as wins, but we would say that for issues, for related claims that become moot under Hensley and Ibrahim, work done towards those claims should not be counted against the fee award because Hensley says a court's failure to reach certain grounds, which is mootness, is not a sufficient reason to reduce the fee.

[00:14:24] Speaker 03:
So then I still don't understand, how do you reduce your fee from $437,000 down to $250,000?

[00:14:32] Speaker 03:
If you're telling the panel that all of these are successes, why are you saying cut it in half?

[00:14:38] Speaker 02:
So those were examples of if this court, a district court, were to find limited success, then there is a way to look at the fee records, to do the mandate under pageant, to show your work when you're calculating the fees. And it could have done that easily by just looking at the dates in the fee records with the first injunction and the last injunction, and then... taking the amounts related to those dates and awarding fees based on those as they are clear wins.

[00:15:10] Speaker 02:
And that would come out to about $250,000, Your Honor.

[00:15:15] Speaker 04:
Are you asking us to do the calculation or are you asking us to tell the district court, here are the mistakes you made in methodology, here's how you should do it, would you please do the calculation?

[00:15:28] Speaker 02:
So we are asking this court to reverse the district court's limited success ruling and find that our clients obtained excellent results and to remand to the district court for a substantial redetermination of the fee award. And that is in line with this court's en banc ruling in Ibrahim, where this court reversed the district court on limited success. found that Ms. Ibrahim had achieved excellent results and then remanded for a substantial redetermination of the fee award. And as a reminder, under Hensley and Ibrahim, when the claims are related and excellent results have been achieved, then a full fee should be awarded.

[00:16:05] Speaker 02:
Okay.

[00:16:06] Speaker 00:
You're out of time. Thank you. Thank you.

[00:16:22] Speaker 01:
Good morning, Your Honors, and may it please the Court, John Drake, on behalf of the United States Department of Labor Defendants.

[00:16:29] Speaker 01:
My goal this morning is to bring some clarity to what actually happened in the district court. As you've seen in the briefing, this was an unusual case. The procedural history is long and complicated. It was essentially four years of amended complaints, emergency PI motions, interlocutory appeals, and a motion to dismiss.

[00:16:49] Speaker 04:
And a change of judges in midstream.

[00:16:51] Speaker 01:
Yes, Your Honor, that's right. And all of that was happening in the midst of five different prevailing wage surveys conducted by the state of Washington Employment Security Department, not by my client, the Department of Labor, and two substantive changes to DOL's prevailing wage regulations, as has been referenced. So this is all a bit difficult to grasp, even for the attorneys who live through it. It's easy to get lost in the complexity. But we need to focus on this because understanding the procedural history is key to resolving the issues presented, particularly on the limited success issue.

[00:17:24] Speaker 00:
And I'll start by addressing... Talked about limited success at the outset in here. Do you agree?

[00:17:34] Speaker 00:
Because they're related, that the original claims were related to the ones that didn't go forward in the first preliminary injunction, that this could be interpreted not as a limited success but as an overall win?

[00:17:52] Speaker 01:
Well, I agree, Your Honor, that the claims are related. That was not something that was disputed in the district court or in this court. The key question, though, is not whether the claims are related, but whether the degree of success achieved warrants an award of full fees. And here the district court found that the extent of the plaintiff's success was very limited.

[00:18:17] Speaker 04:
So it sounds as though they did pretty well. They got you guys to withdraw regulations that they viewed as harmful. Are you saying there's no cause and effect between their lawsuit and withdrawing of those regulations?

[00:18:31] Speaker 01:
I do not agree that the Department of Labor changes regulations in response to anything that plaintiffs litigated in this case.

[00:18:38] Speaker 04:
Why did they change it then?

[00:18:39] Speaker 01:
With respect to the 2022 change, that was an omnibus overhaul of the prevailing wage regulations and a whole bunch of other regulations that pertain to this visa program. The piece that we're talking about is a very small piece, but this was not something that the department did in response to the litigation to try and moot the claim.

[00:19:01] Speaker 04:
It was something that— And how do we know that? It does seem to me— that there's at least a plausible cause and effect relationship. They asked for something. You ended up giving it to them, mooting out their claim.

[00:19:14] Speaker 01:
With respect to the 2022 final rule, Your Honor, that's the one that sort of changes from the outdated handbook 385 that was published in 1981 to the more modern, updated prevailing wage regulations. There is really no evidence in the record whatsoever that that the department made that change in response to anything that the plaintiffs did. And I don't think the plaintiffs have ever made that argument.

[00:19:36] Speaker 00:
Why do you think they made the change then if it wasn't in response to the lawsuit?

[00:19:41] Speaker 01:
With respect to that first change, the 2022 change, this was a change that had been in the works for a very long time. And it's important to remember, of course, that we're talking about the administration of the prevailing wage system in the state of Washington. But this is a nationwide program. And so to say that there was litigation pending in the Eastern District of Washington... that was affecting massive nationwide change for a very outdated system of regulations is just a bridge too far. Now, I will say that with respect to the change in 2023 on the AWAR only claim, Yes.

[00:20:16] Speaker 03:
I mean that was the exact issue that was being – But isn't the core of the claim is to just get the piece rate prevailing wage in addition to ARA? And they got that. I mean we can kind of like try to slice and dice this baloney really, really thin. But the core of the claim is by making the change to the survey – You are having these harvesters paid minimum wage instead of piece rate wage, which is significantly higher, and they got that.

[00:20:48] Speaker 03:
We can carve it up in different claims, but the core of what they asked for, they got repeatedly in this lawsuit.

[00:20:57] Speaker 01:
Well, respectfully, Your Honor, I disagree. They got that one time on the AWAR only claim at the end of the case.

[00:21:03] Speaker 03:
With respect to the seven other claims— No, but let's look at Judge Mendoza's injunction. He says, hey, this is arbitrary and capricious. You need to go back, and you need to figure out a survey that does not cheat these workers their fair pay, right? So then they get the injunction, and then he says, okay, parties, you go out and negotiate what would be the survey parameters that would prevent this problem. And so then you have a modification of the injunction. I don't see why the plaintiffs don't get their attorney's fees for that negotiation. They were ordered to do that by the district judge to implement the preliminary injunction, the first preliminary injunction.

[00:21:38] Speaker 03:
But you're saying, oh, no, that's not a success because that's not a new success. That's just a repeat of the first preliminary injunction. But, no, I don't think so. If you're extending – that preliminary injunction to a next year survey, and you are also creating the parameters for what type of employer survey would be acceptable under law, then they're actually implementing that first preliminary injunction. And to not even give them the fees for that doesn't seem right to me.

[00:22:09] Speaker 01:
Let me provide some additional context that might be helpful. When we're talking about the initial injunction that was entered by Judge Mendoza in March of 2021, and then the modified injunction, The parties use different terms. They call it the modified injunction. We call it essentially the modification or the change to that.

[00:22:29] Speaker 01:
What happened here is when the plaintiffs first filed the case and in their first preliminary injunction motion, they challenged the prevailing wage rates that have been derived from the 2018 employer survey. And yes, as your honor mentioned, the district court found that that survey did not produce reliable data and that the survey instrument itself needed to be changed. And it went back to the prevailing wage rates for 2018.

[00:22:53] Speaker 01:
Now, the parties did negotiate a change to the survey instrument, which was a simple definition of what an hourly guarantee is, and to exclude a minimum wage hourly guarantee from that definition. Now, when the survey results from 2020 came in, the parties looked at those. And there were a lot of piece rate prevailing wage findings in that data set. And the plaintiffs looked at those prevailing wage rates and compared them to the 2018 rates that the district court had gone back to and said, wow, we actually like those a lot better.

[00:23:27] Speaker 01:
And so what the parties ended up doing is modifying the injunction to essentially allow the Department of Labor to publish those rates in the ordinary course of its business to do exactly what it would have done in the absence of any preliminary injunction or any lawsuit.

[00:23:39] Speaker 00:
Would that have happened without the lawsuit?

[00:23:41] Speaker 01:
It would have, Your Honor, exactly.

[00:23:43] Speaker 00:
No, how would that have happened without the lawsuit?

[00:23:46] Speaker 01:
had the lawsuit not been filed the state of washington would have conducted the survey prepared the preliminary findings submitted them to dol and dol would have evaluated them and said yes we're going to publish those rates so for plaintiffs to say that we you know affected a change is really not true i mean they were essentially unwinding the injunction that they were given in march of 2021 in order to get rates that that they thought were more favorable to them it's not something that would have happened It is something that would have happened regardless of anything that happened in the litigation.

[00:24:19] Speaker 01:
I do want to address the plaintiff's claim that they protected millions of dollars.

[00:24:24] Speaker 03:
I guess I'm still unclear. When the ESD updated the prevailing wage survey to add the hourly guarantee field, that was paying harvesters the hourly wage or AEWR instead of the piece rate. And it seems like – and I agree with you. This is a very complicated procedural history. It took up 32 pages of your answering brief, which to me – after I read 32 pages of litigation, I thought, and they only want to give them $100,000 for doing 32 pages of litigation?

[00:24:56] Speaker 03:
I mean that seems a bit on the low end for that much litigation, just – From my personal view, after 32 pages of litigation that you had to recover to only give somebody $100,000 for that for four years of litigation seemed on the low side, but that's neither here nor there.

[00:25:18] Speaker 03:
But all of these changes do seem to have more sort of locked in piece rate payments. for these harvesters. And that seems to have been their ultimate goal. So I apologize. I think I'm repeating myself. But it does seem like we can sort of nitpick on all of this, but all of these changes seem consistent with that overall of getting harvesters closer to the piece rate prevailing wage than minimum wage.

[00:25:50] Speaker 01:
Thank you for the opportunity to address that. I think that really is where the rubber meets the road on this case, because plaintiffs are saying they achieved excellent results by protecting peace rate prevailing wage rates over the course of three years for all H-2A farm workers.

[00:26:06] Speaker 01:
That is not the goal that they set out to achieve. If you look at the operative second amended complaint and the request for relief section specifically, it lays out APA claims that challenge the department's prevailing wage regulations and policies and seeks to set those policies and regulations aside as arbitrary and capricious and not in accordance with law.

[00:26:28] Speaker 01:
Permanent injunctive relief and declaratory relief is what the plaintiffs were seeking, not a modification of particular prevailing wage rates.

[00:26:37] Speaker 03:
Not higher pay for harvesters?

[00:26:39] Speaker 00:
And that was a permanent injunction.

[00:26:43] Speaker 01:
Well, the permanent injunction was entered at the end of the case, and they were only claimed that did not have anything to do with the calculation of prevailing wage rates. That only has to do with offers that are made in the job order before the work is performed.

[00:26:56] Speaker 00:
And again, this gets very complicated, but in the end, it seems like they did lock in the peace rate prevailing wages. Do you agree with that?

[00:27:10] Speaker 01:
They did for one survey year in the state of Washington. It is true that the 2019 prevailing wage rates that they challenged, they did succeed in that challenge and reverted back to the 2018 rates. But from that point forward, nothing that plaintiffs did in this litigation resulted in their litigation causing any effect or any change to the prevailing wage rates.

[00:27:33] Speaker 04:
So you say the defendants out of the goodness of their own heart gave all the other benefits unrelated to this lawsuit?

[00:27:40] Speaker 01:
No, Your Honor. I'm saying with respect to the 2020 rates that came in on the modified injunction order, this is something that this is just what the data showed. I mean, this is the survey that's conducted by the state of Washington Employment Security Department, and they're aggregating the data and they're running the calculations, and that is the data. And in that instance, the Department of Labor said, yes, we would like to publish those rates. And plaintiffs said, we agree, those should be published in the ordinary course. With respect to the 2021 survey that plaintiffs unsuccessfully challenged in their second preliminary injunction motion, Those prevailing wage rates were just never published, and it was not because of anything that plaintiffs did in this litigation.

[00:28:19] Speaker 01:
It was because the department had changed the calculation methodology, essentially, and the state of Washington Employment Security Department, not the Department of Labor, but the ESD decided not to submit this.

[00:28:31] Speaker 00:
Those are the ones that were mooted, is that correct, in the second preliminary injunction?

[00:28:35] Speaker 01:
I wouldn't say that they were mooted, Your Honor. I would say that the state decided that they would – they wanted to just move forward and validate rates from the next year's survey.

[00:28:45] Speaker 01:
So not, again, anything being done by the Department of Labor that resulted in that and certainly not anything that the plaintiffs did.

[00:28:54] Speaker 00:
Let me ask you, just assuming it's not an overall excellent win and that is a limited success – You are arguing, it seems like, in your brief that we shouldn't apply heightened scrutiny of the district court's 75% cut. I think you basically assert that language comes from a dissenting – or it seems like it's coming from a dissenting opinion.

[00:29:25] Speaker 00:
Yes. But that language comes directly from our opinion in Gates, right?

[00:29:32] Speaker 00:
So how can we affirm the district court's reasoning in this case when it is so similar to that given in Gates, which said that that is not enough of an explanation?

[00:29:43] Speaker 01:
Well, the Gates opinion, Your Honor, is talking very specifically about reduction in hours for time that is unproductively spent, so overbilling or duplicative work. So that's the final adjustment to the Lodestar rule. That heightens scrutiny language pertains to I need to go through and trim the fat on this attorney's bill, right? It is not talking about the separate step of making this overarching equitable determination about whether the plaintiffs achieved a degree of success that's commensurate with what they set out to achieve, right?

[00:30:16] Speaker 01:
And so that heightened scrutiny standard really should not be applied in this context because you have to remember when the claims are related, when they're intertwined, the district court is not supposed to go through the billing records. It's sort of an impossibility because you don't know where one claim begins and the next claim ends, right? And so in that situation, when the claims are related, the district court has to make an equitable determination. And a percentage reduction is the most logical way of doing it, right? I mean, we can't look at the billing records.

[00:30:47] Speaker 01:
I mean, what other metric are you going to use, right? I mean, a percentage reduction makes sense. This court has affirmed those types of reductions all the time in this specific context. And applying heightened scrutiny would essentially, you know, put the district court behind the eight ball because it can't look at the billing records, but it has to make some sort of equitable adjustment. But then that equitable adjustment is going to be subjected to heightened scrutiny on appellate review. It just – it doesn't make any sense.

[00:31:10] Speaker 03:
Can I ask you a question? Is your position that all mooted claims don't count as successes or just in this case because the Department of Labor would have taken these actions on its own absent the litigation?

[00:31:23] Speaker 01:
The latter with one clarification. Okay.

[00:31:25] Speaker 03:
We're in the district court's opinion that the district court make that finding. I don't see anything in here where the district court actually evaluated – whether the Department of Labor would have initiated the issuance of the new regulations or amending the regulations on its own absent the lawsuit.

[00:31:38] Speaker 01:
You're correct, Your Honor. The district court did not do that.

[00:31:40] Speaker 03:
And you're saying that is required, though, to make a decision as to whether a mooted claim should be – compensable or not for fees?

[00:31:47] Speaker 01:
Respectfully, no, Your Honor. I'm not saying that. I think what I would like to convey is the district court did look at these mooted claims in the context of the case and the context in which they were litigated. And as was referenced earlier, there were four different claims pending at the first preliminary injunction stage, for example. The plaintiffs lost on three of those claims, right? And two of those claims, the sample size threshold claim and the...

[00:32:16] Speaker 01:
And the wages and working conditions claim, if I recall, were essentially dismissed as a matter of law. The court ruled as a matter of law that these claims really are not viable. Right. And so that's a loss right out of the gate. Those claims were ultimately mooted. But the district court recognized that they were litigated and and were not successful. So it's possible that if you have a claim that is just sort of floating out there in a case and never gets litigated and at the very end of the case. that claim became moot. Perhaps that claim should not be counted as a loss, but in the context of this case, the district court appropriately weighed the mooted claims as unsuccessful claims.

[00:32:51] Speaker 00:
Thank you.

[00:32:52] Speaker 01:
Thank you.

[00:32:57] Speaker 00:
You're out of time, but I'll give you one minute.

[00:32:59] Speaker 02:
Thank you, Your Honor.

[00:33:01] Speaker 02:
So our clients succeeded in what they set out to achieve. That's in our complaint at 6ER 1393, where we stated that we were seeking to prevent action from, quote, drastically slashing the wages of Washington farm workers, end quote. And our clients succeeded in protecting those higher piece rate wages, quote, And for the two other points that I have on rebuttal, Your Honor, our clients obtained full relief in the first injunction.

[00:33:34] Speaker 02:
And even the department conceded at 2ER264 that the plaintiffs had, quote, achieved our primary objective, end quote. And so that constitutes excellent results. And lastly, we used...

[00:33:53] Speaker 02:
Our clients are requesting a full fee for the work done in support of those excellent results. We used the example of $250,000 just as an example to show how the district court had been incorrect and how it had no basis in the fee records.

[00:34:10] Speaker 00:
Thank you. Thank you very much.

[00:34:12] Speaker 02:
Thank you.

[00:34:13] Speaker 00:
The case of Ramon Torres Hernandez versus Julia A. Hsu, United States Secretary of Labor, is now submitted. Ms. Warner, Mr. Drake, thank you very much for your oral argument presentations here today.