[00:00:03] Speaker 01:
May it please the court.

[00:00:30] Speaker 06:
My name is Adam Charnas and I represent the class plaintiffs in this appeal.

[00:00:35] Speaker 06:
We are here as a deja vu all over again.

[00:00:37] Speaker 06:
We're here yet again with another Cobell appeal, but this one is about an ancillary matter, how to allocate some of the attorney's fees that were awarded to the plaintiffs, to plaintiffs council as part of the settlement.

[00:00:50] Speaker 06:
And I'd like to address three points.

[00:00:53] Speaker 06:
First, this court lacks jurisdiction to review the attorney's fees order.

[00:00:58] Speaker 06:
as Brown's pre-judgment interest motion was not a Rule 59e motion that told the time for the parties to appeal.

[00:01:06] Speaker 05:
So we would have jurisdiction, however, after the question of the pre-judgment interest, the interest on Brown's fees.

[00:01:17] Speaker 06:
That's correct.

[00:01:17] Speaker 06:
We're not disputing jurisdiction over the pre-judgment interest order.

[00:01:22] Speaker 06:
We think that order was improper and the court should reverse it.

[00:01:26] Speaker 06:
And the third point is that if the court does have jurisdiction over the attorney's fees order, we would submit that it should be reversed and that Brown should be denied some or all of his fees because of his clear and serious ethical violations.

[00:01:40] Speaker 06:
To start with the jurisdictional issue first, the two notices of appeal, both of which included the appeal from the attorney's fees order, were filed 98 and 112 days after the attorney's fees order.

[00:01:55] Speaker 06:
So we believe the appeals of that order were timely only if the pre-judgment interest motion qualified as a Rule 59E motion that told the time to appeal.

[00:02:06] Speaker 06:
And of course, what the label that's put on the motion is not relevant to determine whether in substance was a 59E motion.

[00:02:14] Speaker 06:
And we think that the plain language of Rule 59E disposes of that question.

[00:02:19] Speaker 06:
59E applies only to a motion, a judgment.

[00:02:23] Speaker 06:
and the attorney's fees order was not a judgment.

[00:02:26] Speaker 06:
The judgment in this case was entered on August 4th, 2011.

[00:02:33] Speaker 06:
And in the ordinary case, of course.

[00:02:35] Speaker 03:
But Mr. Turner said it wasn't a judgment.

[00:02:38] Speaker 03:
It also wasn't final.

[00:02:39] Speaker 03:
It was an order of Magistrate Judge Harvey saying, OK, here's the amount of the basic fee.

[00:02:47] Speaker 03:
And if Mr. Brown wants to file a motion for prejudgment interest, I'll entertain that in two weeks.

[00:02:52] Speaker 03:
So what's final about that?

[00:02:54] Speaker 03:
He doesn't say this is a final judgment, appealable.

[00:02:57] Speaker 03:
He anticipates further action.

[00:02:59] Speaker 03:
And by your own claim, it's not a judgment.

[00:03:03] Speaker 06:
Well, normally an attorney's fees order is a final decision for purposes of 1291.

[00:03:08] Speaker 06:
All the magistrate judge here said was, if you want to file a prejudgment interest motion, go ahead and do it.

[00:03:15] Speaker 06:
A party has a right to do that in every case.

[00:03:18] Speaker 06:
So if the mere possibility of the prevailing party

[00:03:22] Speaker 06:
filing a prejudgment interest motion was enough to make it not final, then in every single case, we would have to wait, the court would have to wait to see whether such a motion was in fact filed to determine its finality.

[00:03:33] Speaker 03:
And I don't think- But under Schaefer-Brewing, we look at the nature of the order, what the district judge seemed to contemplate, and here he seemed to contemplate that there was something more to do.

[00:03:42] Speaker 06:
Well, he said that if Brown wanted to file a motion, he could file it.

[00:03:47] Speaker 06:
And he did.

[00:03:48] Speaker 06:
And he did.

[00:03:49] Speaker 06:
Now, their argument was that for ab initio, as of January 31, 2017, the order wasn't final and nobody could appeal from that.

[00:03:58] Speaker 06:
And we think that's wrong simply because that's always, as I said, it's always the possibility that someone could file a motion for prejudgment interest.

[00:04:06] Speaker 06:
And that doesn't make it non-final until the motion's actually filed.

[00:04:09] Speaker 06:
And the reason

[00:04:11] Speaker 06:
when a prejudgment interest motion is normally filed is that the time to appeal stops is because of Rule 4 if it's a Rule 59E motion.

[00:04:20] Speaker 06:
Now there's a different argument here which they didn't make and we think that they waived and that may be what Your Honor is suggesting is that upon the filing of the prejudgment interest motion

[00:04:31] Speaker 06:
it destroys the finality that otherwise existed in the attorney's fees order.

[00:04:37] Speaker 06:
And I think they waive that argument.

[00:04:38] Speaker 03:
Well, if it's a judgment, then it's final.

[00:04:41] Speaker 03:
And then they can file 59E.

[00:04:42] Speaker 03:
And if it's not, it wasn't final.

[00:04:44] Speaker 03:
And they don't need to.

[00:04:46] Speaker 03:
I mean, it seems like a kind of excessive gotcha formality argument on your part.

[00:04:52] Speaker 03:
And I'm really not sure if there's any practical concerns that are driving it.

[00:04:59] Speaker 03:
you yourselves in responding, I think it was in responding to the motion for Peter DeMantra said,

[00:05:09] Speaker 03:
You said, you know, the court should just enter judgment as if the judgment hadn't already been entered.

[00:05:15] Speaker 03:
So it wasn't, nobody thought that the deal was done and that there was an appealable order when the district judge, when the magistrate judge entered the basic attorney's fees amount.

[00:05:28] Speaker 06:
I guess the question, Your Honor, is whether the fact that the magistrate judge invited or indicated he would accept such a motion, whether that destroyed the finality

[00:05:38] Speaker 06:
of the order or not.

[00:05:40] Speaker 06:
And our position is that because that's possible in every case, whether the judge says that or not, that it can't possibly be that it's not final because of the possibility that someone would file such a motion.

[00:05:51] Speaker 03:
So what flows from that?

[00:05:52] Speaker 03:
So let's say there's some ambiguity there because somebody could do something further.

[00:05:57] Speaker 03:
that isn't invited, then everybody assumes that they have 30 days and they timely file their appeal.

[00:06:03] Speaker 03:
Or if they're concerned about whether that's right, they ask the judge, you know, is this final and appealable?

[00:06:09] Speaker 03:
And the judge enters a minute order saying yay or nay.

[00:06:12] Speaker 03:
So I guess I'm trying to understand what other case other than this would be discommoded were we to

[00:06:24] Speaker 03:
that this was final and appealable after the, you know, that it was timely.

[00:06:31] Speaker 06:
Well, this is an unusual procedural context.

[00:06:33] Speaker 06:
I'm not sure there are a lot of cases that would be affected by it.

[00:06:38] Speaker 06:
You know, I think it would be true

[00:06:40] Speaker 06:
We haven't discovered another case where someone saw a prejudgment interest for fees awarded in an attorney's fee award, part of what limited the parties, I think, in finding relevant precedent generally.

[00:06:51] Speaker 06:
So I think it has a narrow application.

[00:06:53] Speaker 06:
But to move on to the merits, perhaps, of the issue, you know, we think that the error that the magistrate judge made in awarding prejudgment interests was that he ignored the context

[00:07:04] Speaker 06:
of this dispute.

[00:07:06] Speaker 06:
And the context was that Brown claimed that he was entitled to about $5.5 million of the attorney's fees that were awarded by the court.

[00:07:14] Speaker 06:
And class counsel argued or claimed entitlement to the very same $5.5 million.

[00:07:21] Speaker 06:
And the district court then placed that money in the settlement account for the balance until that issue was decided.

[00:07:27] Speaker 06:
The settlement went to the party's settlement agreement and was an escrow account controlled by the district court that paid

[00:07:34] Speaker 06:
for practical purposes, no interest.

[00:07:38] Speaker 06:
The interest rate, because the settlement funds in general were invested in this account, so it was required to be government securities.

[00:07:47] Speaker 06:
So it was a practical matter.

[00:07:48] Speaker 06:
There was virtually no interest that was earned.

[00:07:51] Speaker 06:
So the parties, Brown and Class Council, each claimed entitlement to the same money.

[00:07:57] Speaker 06:
The litigation over that claim took a very long time.

[00:08:01] Speaker 06:
And at the end of it, the magistrate judge awarded Brown 52% of the disputed funds and awarded class counsel 48% of the disputed funds.

[00:08:13] Speaker 06:
And the important point from our perspective is that class counsel was denied use of that 48% during the five years or so of the litigation over it.

[00:08:24] Speaker 06:
the same extent that Brown was denied use of the 52%.

[00:08:27] Speaker 03:
And in fact, it was Brown's... But the magistrate judge held that Brown was entitled to fees effectively as of the beginning of that period, the way everybody else got their fees, and that plaintiff's counsel should have sought fees to cover Brown too and didn't.

[00:08:43] Speaker 03:
So then the question is, does he get the value of his services?

[00:08:48] Speaker 03:
And either he gets laffy rates to account for the fact that there's time delay, or he gets prejudgment interest.

[00:08:54] Speaker 03:
So one implication of your position is, why not give him a laffy rate or some

[00:09:02] Speaker 06:
Increment of the from the three hundred fifty dollar rate that's reflected in the in the contract as was true for Mr. Holden for other members of the of the team well that a Couple of things in what you said time value of money That's the question first of all the reason and I disagree with your characterization of what the magistrate judge found respectfully the reason Brown's time wasn't included in the initial motion for attorney's fees was a member of the plaintiff's

[00:09:32] Speaker 06:
then current litigation team went to California and met with Mr. Brown and said to him,

[00:09:39] Speaker 06:
In order to submit your time, we need detailed time records.

[00:09:43] Speaker 06:
And we know that he had those time records because he submitted them to the magistrate judge in part of this proceeding.

[00:09:48] Speaker 06:
But the court's order in the agreement with the government, the defendants require detailed time records to be submitted in support of an attorney's fee motion.

[00:09:58] Speaker 03:
At a time when everybody else was already submitting them.

[00:10:00] Speaker 06:
At the same time.

[00:10:01] Speaker 06:
And Mr. Brown refused to do that.

[00:10:03] Speaker 06:
He sent a one page summary of his time.

[00:10:05] Speaker 06:
He did not send his detailed time records.

[00:10:07] Speaker 06:
So it was literally impossible

[00:10:09] Speaker 06:
for plaintiff's counsel to submit his time record, to include his time in the fee application.

[00:10:14] Speaker 06:
We also said to him that Mrs. Cobell was still very angry with him for the way he left town without telling her or any of the other plaintiff's counsel, and that he should call her and discuss it with her.

[00:10:31] Speaker 06:
And he never did.

[00:10:33] Speaker 06:
So for those two reasons, his time wasn't included.

[00:10:36] Speaker 06:
The second point is, as the magistrate judge found,

[00:10:39] Speaker 06:
Laffey rates are inapplicable here.

[00:10:42] Speaker 06:
Laffey rates are applied to fee-shifting cases or fee-shifting statutes

[00:10:48] Speaker 03:
against the government and that this... Right, but I mean, I refer to them loosely as sort of the amount that one would look at as an adjusted current market rate rather than the rate as of the agreement years before.

[00:11:02] Speaker 06:
Pardon me.

[00:11:02] Speaker 06:
Plaintiff's Council, the $4.6 million or $2.6 million that were awarded to Plaintiff's Council out of the $5.5 million that was set aside, we lost the same use of that money during the same period of time.

[00:11:15] Speaker 06:
And the key point here is that at the very beginning, when this money was put in the settlement account, there was no secret that it was going into the settlement fund, Judge Hogan ordered it, and there was no secret that it would earn essentially no interest, a fraction of a percent of interest.

[00:11:30] Speaker 06:
And if Mr. Brown had a concern about the money sitting there not earning any interest,

[00:11:35] Speaker 06:
during this period of time, he could have said something at the time, and the parties... So too could you have.

[00:11:42] Speaker 03:
Well, we're not the ones complaining about... Well, you are, because you're saying part of the problem in giving him the pre-judgment interest is that you are not getting pre-judgment interest.

[00:11:49] Speaker 06:
Well, part of our problem is that we're not being treated equitably, that we lost the same use of the money, and that it's unfair for him to get

[00:11:57] Speaker 06:
upwards of a million dollars of pre-judgment interest out of the 2.6 million that was awarded to class counsel.

[00:12:04] Speaker 03:
Is the 99 million that was awarded to class counsel, that wasn't based on a Lodestar calculation, was it?

[00:12:10] Speaker 03:
It wasn't, I mean, I know there was a cross-check, but it's not that every, that whole amount, it's more of a compromise, isn't it?

[00:12:19] Speaker 06:
The magistrate judge's order or the?

[00:12:21] Speaker 03:
No, the 99 million that was the pot from which Mr. Brown's fees were extracted.

[00:12:25] Speaker 06:
Well, the settlement range was a compromise, right, $50 million to $99 million.

[00:12:30] Speaker 06:
Judge Hogan asked for time records to be some detailed time records as a lodestar cross check, and then awarded 99 million.

[00:12:37] Speaker 06:
But that raises another point I can respectfully disagree with, Your Honor.

[00:12:42] Speaker 06:
No other lawyer in this case was paid by the hour, right?

[00:12:45] Speaker 06:
Right.

[00:12:46] Speaker 06:
Mr. Brown is the only one seeking entitlement to be paid by the hour.

[00:12:49] Speaker 06:
So the rates that were submitted to the court as part of that lodestar are not the amounts that they were paid.

[00:12:55] Speaker 06:
He's the only one who's.

[00:12:56] Speaker 03:
But you're not getting less than the lodestar amount you requested.

[00:12:59] Speaker 06:
Well, we're getting less than our total time records that were submitted to the court, which are about $110 million.

[00:13:07] Speaker 06:
By the settlement agreement, we agreed not to seek the full amount.

[00:13:09] Speaker 06:
So we actually requested $99.9 million, and Judge Hogan awarded us $99 million.

[00:13:17] Speaker 06:
Not that I'm complaining.

[00:13:18] Speaker 03:
But you didn't have to go through the billing judgment slice and the, I mean, there wasn't scrutiny.

[00:13:23] Speaker 06:
Absolutely, that's absolutely right.

[00:13:25] Speaker 03:
And your effective hourly rates were well higher than the rates reflected, for example, in, is it Mr. Hurd's letter?

[00:13:35] Speaker 03:
He ended up getting an effective rate much higher than Mr. Brown got.

[00:13:39] Speaker 06:
Well, I'm not sure that that's true.

[00:13:43] Speaker 06:
Certainly, I don't think the magistrate judge found that.

[00:13:45] Speaker 03:
But if you look at his time sheets and the amount he ends up walking away with, and you calculate an effective rate, it's higher than what Mr. Brown got.

[00:13:57] Speaker 03:
And higher than what was in his retainer letter.

[00:14:01] Speaker 06:
Yeah, but that's true.

[00:14:02] Speaker 06:
But the rest of plaintiff's counsel, unlike Mr. Brown, who stood with the case years after Mr. Brown left Washington and went back to California, they bore the risk of getting nothing.

[00:14:14] Speaker 03:
Absolutely.

[00:14:15] Speaker 03:
And they did the brunt of the work at the beginning.

[00:14:16] Speaker 03:
They did the brunt of the work at the end.

[00:14:18] Speaker 06:
And that's why.

[00:14:19] Speaker 03:
True.

[00:14:19] Speaker 03:
But they also wanted him to leave.

[00:14:22] Speaker 03:
You're not crying that he left.

[00:14:23] Speaker 03:
A critical member of the team left us in the lurch.

[00:14:26] Speaker 03:
That's not this case.

[00:14:27] Speaker 06:
Well, I would concede that is the case, but I think the ethical obligations on lawyers still apply whether you're a critical member of the team or whether you're a pain in the butt that everyone else is.

[00:14:37] Speaker 03:
He's a bit of a subcontractor to you.

[00:14:38] Speaker 03:
I think you would not dispute that.

[00:14:40] Speaker 06:
I'm sorry.

[00:14:40] Speaker 03:
He was a bit of a subcontractor to the plaintiff's class team.

[00:14:44] Speaker 06:
No, no.

[00:14:45] Speaker 06:
I don't think that's right.

[00:14:45] Speaker 06:
He had his own engagement letter with the plaintiffs.

[00:14:48] Speaker 03:
Functionally, he's not leaving the plaintiffs high and dry by any means.

[00:14:52] Speaker 06:
I agree with that, Your Honor, but as the restatement makes clear, this is moving more on to the attorney's fees issue, but as the restatement makes comment, data section 37 makes clear that forfeiture of partial or total fees can be appropriate even without harm when the violation of ethical duties is flagrant enough.

[00:15:10] Speaker 06:
Uh, and we certainly think that leaving town without telling me you have to remember your honor.

[00:15:14] Speaker 06:
Mr. Brown's office shared office space with the rest of plaintiffs council is literally next to the rest of plaintiffs council.

[00:15:23] Speaker 05:
Does that question go to the interest for judgment interest issue?

[00:15:28] Speaker 05:
Does that go back to the.

[00:15:30] Speaker 05:
merits of the award issues that you say we don't have jurisdiction on?

[00:15:34] Speaker 06:
I think it goes more to the merits of the award issue, yes.

[00:15:37] Speaker 05:
So if we are limited to the interest question, then we really don't have to re-examine any of those decisions, do we?

[00:15:45] Speaker 06:
Yes, that's correct.

[00:15:47] Speaker 06:
If you agree there's no jurisdiction over the attorney's fees.

[00:15:49] Speaker 05:
Now, I hate to open the can of worms any further than it is, but if we do examine the merits issues, what is our standard of review?

[00:16:01] Speaker 06:
Well, I think the standard of view is abuse of discretion.

[00:16:06] Speaker 05:
So don't you have a very steep hill to climb?

[00:16:11] Speaker 06:
Well, I think we have an abuse of discretion hill to climb.

[00:16:15] Speaker 06:
I think both sides do with respect to the attorney's fees.

[00:16:19] Speaker 05:
With respect to what you say the errors are in the attorney's fee, you would have an abuse of discretion hill to climb.

[00:16:26] Speaker 06:
We have an abuse of discretion, except we do point there is a clear legal error that the magistrate judge made

[00:16:31] Speaker 06:
in the attorney's fees order.

[00:16:34] Speaker 06:
And I don't think the other side disputes this.

[00:16:36] Speaker 06:
I mean, basically, the magistrate judge, I think, agreed that Mr. Brown violated his ethical duties in two ways, by not notifying his clients.

[00:16:45] Speaker 06:
Well, he agrees with that.

[00:16:46] Speaker 06:
I'm sorry?

[00:16:47] Speaker 06:
He agrees with that.

[00:16:48] Speaker 02:
He agrees with that.

[00:16:48] Speaker 02:
So the question is, right, we've got that.

[00:16:51] Speaker 02:
OK.

[00:16:52] Speaker 06:
And then the magistrate judge said, well, I'm going to excuse those violations.

[00:16:55] Speaker 06:
And he gave two reasons for excusing the violations, one of which involved a misquotation from the comment to the DC ethics rules turning the meeting on its head.

[00:17:05] Speaker 06:
I don't think Brown defends that.

[00:17:07] Speaker 06:
So that is a legally erroneous Brown.

[00:17:09] Speaker 03:
But it doesn't really make a difference, does it?

[00:17:12] Speaker 03:
Either way, the misquotation, it just doesn't seem like it made an operative difference.

[00:17:16] Speaker 06:
Well, it makes a difference only in the respect that the magistrate judge said, there are two reasons I'm going to excuse the ethical violations.

[00:17:23] Speaker 06:
One of them is plainly wrong.

[00:17:24] Speaker 06:
If the other one is satisfactory, then yes, it doesn't make any difference.

[00:17:28] Speaker 06:
We would suggest that the other one is wrong also.

[00:17:33] Speaker 06:
And he basically said, well, Mr. Brown didn't intend to violate the ethics rules.

[00:17:39] Speaker 06:
because he thought he was still on the job, albeit 2,300 miles away and was still on call.

[00:17:46] Speaker 06:
And, you know, even within the abuse of discretion standard, we think that that holding is legally erroneous, and that's obviously something the court can review de novo.

[00:17:55] Speaker 06:
You know, a pure heart and an empty head is not a defense to an ethics violation here.

[00:18:01] Speaker 06:
And it's just incredible to suggest that Mr. Brown thought that he

[00:18:06] Speaker 06:
was fulfilling his ethical obligations from 2,300 miles away when there's active day-to-day litigation centered in federal court here in DC with lawyers spending thousands of hours, billable hours, per year on the case.

[00:18:22] Speaker 06:
So we would suggest that both of those grounds are legally erroneous.

[00:18:27] Speaker 06:
And therefore, the magistrate judge should take another look at whether a forfeiture is appropriate and to what extent a forfeiture is appropriate.

[00:18:36] Speaker 06:
It's not like Mr. Brown, even if he's denied all of his fees in this proceeding, and we're not necessarily suggesting that that is the appropriate result, it's going to go away penniless.

[00:18:51] Speaker 02:
I'm sorry, Your Honor.

[00:18:52] Speaker 02:
I said you can make that same argument about you, too.

[00:18:54] Speaker 02:
Well, that's true.

[00:18:55] Speaker 02:
I mean, that doesn't get us anywhere.

[00:18:56] Speaker 02:
Well, but we... You're both getting something out of this, right?

[00:19:00] Speaker 02:
Come on, that doesn't help at all.

[00:19:01] Speaker 03:
Yes.

[00:19:01] Speaker 03:
Let me ask you just about the standard of review.

[00:19:04] Speaker 03:
The Magistrate drug chief, to treat this as a contract question,

[00:19:09] Speaker 03:
And if it is a contract question, then isn't the standard of review somewhat different?

[00:19:14] Speaker 03:
It's de novo on issues of law and clearly erroneous on factual determinations.

[00:19:20] Speaker 03:
And I assume you agree with that, but you may disagree with whether this should be reviewed as a contract decision.

[00:19:28] Speaker 06:
Yeah, I don't think it's a contract question.

[00:19:31] Speaker 06:
Brown didn't file a claim for breach of contract.

[00:19:34] Speaker 06:
The contract, the engagement letter is what it is.

[00:19:37] Speaker 06:
There's no dispute about what it says.

[00:19:39] Speaker 06:
I think what the magistrate's finding was, he said, listen, Brown bears the obligation to show what his reasonable fee was.

[00:19:46] Speaker 06:
The only evidence in the record is his engagement letter with a $350 per hour fee.

[00:19:54] Speaker 06:
And since he didn't submit anything else, that's the fee that governs.

[00:19:58] Speaker 03:
So what is the underlying basis of the fee award if it's not a contract?

[00:20:04] Speaker 06:
Well, his fee petition sought part of the common fund that the plaintiffs created.

[00:20:09] Speaker 06:
His rationale shifted along the way.

[00:20:14] Speaker 06:
By the time he got to the hearing, it was sort of a combination of quantum Merowitz claim based on the engagement letter.

[00:20:27] Speaker 06:
It wasn't a breach of contract claim because he would have had to sue, presumably, his engagement letters with the plaintiffs.

[00:20:37] Speaker 06:
He would have had to sue the plaintiff class somehow in trying to collect the judge.

[00:20:41] Speaker 03:
I thought this is against the plaintiff class.

[00:20:42] Speaker 03:
I thought you were representing the plaintiff class.

[00:20:45] Speaker 06:
Yes, we do.

[00:20:46] Speaker 06:
But his claim was for part of the common fund that the court had created.

[00:20:50] Speaker 06:
My point is that it wasn't a civil action

[00:20:53] Speaker 06:
Brown versus Cobell at all.

[00:20:57] Speaker 06:
It was a claim for part of the Common Fund, as I understand what their theory is.

[00:21:05] Speaker 06:
So I don't think it was, I think, like any attorney's fees award, it's reviewed for legal errors or reviewed ANOVA, obviously, but otherwise a view for abuse of discretion.

[00:21:15] Speaker 02:
All right.

[00:21:15] Speaker 06:
Thank you.

[00:21:17] Speaker 02:
Thank you.

[00:21:18] Speaker 02:
Thank you.

[00:21:18] Speaker 02:
We'll hear from Amicus for the other party.

[00:21:21] Speaker 03:
Oh, all right.

[00:21:23] Speaker 03:
Or do we want to hear from, on this issue?

[00:21:26] Speaker 02:
Well, I'm just going in the order that they're here, and he's a petitioner.

[00:21:29] Speaker 02:
He's an appellant, so I think we should hear from him.

[00:21:33] Speaker 02:
Oh, OK.

[00:21:33] Speaker 02:
Go ahead.

[00:21:44] Speaker 00:
May it please the court, I'm Nicole Reeves here on behalf of, here arguing as court appointed amicus on behalf of Mr. Clayton Creek.

[00:21:52] Speaker 00:
In my very brief time with the court, I plan to address two issues.

[00:21:56] Speaker 00:
First, the fact that Mr. Creek's claim for relief has become moot because he has fully received all the Cobell settlement funds he's entitled to and has been permitted to spend them.

[00:22:06] Speaker 00:
And second, that under the doctrine laid out in the United States v. Muntingware, this court should vacate the district court's order below and remand this case to the district court with instructions to dismiss the case.

[00:22:16] Speaker 03:
Why and how, in your understanding, does Mr. Creek believe that he still has a claim given that he joined in full your brief, claiming that his claim is moot?

[00:22:29] Speaker 00:
Yes, Your Honor, as I understand it, for the first time in his filing in this court, potentially refer to Native American trust or lease payments.

[00:22:38] Speaker 00:
So unrelated to the Cobell class settlement that he believes that he's entitled to and that he believes are being impermissibly used to pay prison fees or PLRA obligations.

[00:22:50] Speaker 03:
So he believes he has other entitlements not flowing from this litigation.

[00:22:55] Speaker 03:
that he is being deprived of.

[00:22:57] Speaker 03:
That's correct, Your Honor.

[00:22:59] Speaker 03:
And in terms of the Munsingware point, I understand the general legal argument, but what's at stake with Judge Hogan's order?

[00:23:10] Speaker 03:
How could it have any preclusive or prejudicial effect?

[00:23:13] Speaker 03:
Why should we vacate it?

[00:23:14] Speaker 03:
Did he dismiss the claim of prejudice, as far as I understand, just said, hey, if there's a problem, come back?

[00:23:20] Speaker 00:
So a couple of responses to that, Your Honor.

[00:23:23] Speaker 00:
First, I agree that it's not completely clear the extent to which Judge Hoban's order would be preclusive.

[00:23:30] Speaker 00:
But under numerous cases from this court, such as American Lease and other cases, this court has held that when there's a doubt as to whether there would be any preclusive effect from a decision, the doubt is resolved in favor of vacater.

[00:23:45] Speaker 00:
And my second response is it's not actually clear that the motion was without prejudice, although he follows up his denial with a statement that the class council can raise other issues and encouraging the South Dakota Department of Corrections to behave in a certain way.

[00:24:00] Speaker 00:
The denial is unequivocal.

[00:24:02] Speaker 00:
There's no statement that it's without prejudice, unlike other orders in this case that Judge Hogan issued.

[00:24:06] Speaker 03:
Is there any need to vacate it?

[00:24:09] Speaker 03:
Has he asked that it be vacated?

[00:24:12] Speaker 00:
Mr. Creek?

[00:24:12] Speaker 00:
Yeah.

[00:24:13] Speaker 00:
Well, Your Honor, Mr. Creek has joined our brief in full.

[00:24:17] Speaker 00:
And to the extent that he's joined that brief in full, I think that's correct.

[00:24:20] Speaker 03:
And he's obviously... But he hasn't reached out and said, if you can only do anything for me, get this order vacated?

[00:24:26] Speaker 00:
No, Your Honor, that was what I, what as court appointed the amicus we believe to be in his best interest because it does, it fits with the whole reason that vacater, that courts do perform vacater.

[00:24:39] Speaker 00:
The Supreme Court said in Cameron R. B. Green that the reason that courts employ vacater is to clear the path for relitigation and not to punish a party because they were unable to challenge something on appeal.

[00:24:51] Speaker 00:
And while I agree that it's unclear how much this order might impact him in the future, that's really the best way to ensure that he can fully and fairly raise related claims or if he becomes entitled to additional COBEL settlement funds as an heir in this case or in a future case.

[00:25:09] Speaker 00:
So just returning then briefly to the fact that, to some of the other arguments that Mr. Creek has made in some of his more recent filings, he's mentioned, for example, the possibility of mandamus in some of his filings with this court.

[00:25:25] Speaker 00:
And this court should not grant mandamus for a couple of reasons.

[00:25:28] Speaker 00:
The first is that the mandamus request doesn't save the issue from mootness.

[00:25:33] Speaker 00:
And the second issue is that his claim does not meet the high standards required to show that he merits mandamus.

[00:25:41] Speaker 00:
He has not shown that he has no alternative form for relief, which is one of the first requirements for showing of mandamus.

[00:25:49] Speaker 00:
As far as I understand it, as previously mentioned, he wants to be able to spend other unidentified Native American trust or lease funds.

[00:25:56] Speaker 00:
And he will have adequate means to obtain that relief, particularly if this court vacates the order below.

[00:26:02] Speaker 00:
He can file a new suit in the District of South Dakota against the South Dakota Department of Corrections, likely 1983 suit, requesting that he be able to use those funds.

[00:26:15] Speaker 00:
If the court has no further questions.

[00:26:18] Speaker 02:
Mr. Reeves, you were appointed by the court to serve as an advocate.

[00:26:23] Speaker 02:
We are grateful to you for your help.

[00:26:24] Speaker 02:
Thank you.

[00:26:25] Speaker 00:
Thank you, Your Honor.

[00:26:26] Speaker 02:
So we'll now hear from counsel for Mr. Brown.

[00:26:31] Speaker 02:
Mr. Larson.

[00:26:37] Speaker 02:
Thank you, Your Honor.

[00:26:38] Speaker 04:
Let me introduce the court.

[00:26:39] Speaker 04:
Stephen Larson for the appellee and cross-appellant, Mr. Mark Kester-Brown.

[00:26:47] Speaker 04:
Your honors, I'll deal with the three issues raised on oral argument here by opposing counsel.

[00:26:53] Speaker 04:
The first issue is the jurisdictional issue.

[00:26:55] Speaker 04:
We believe that the prejudgment interest motion was clearly a 59E motion that was brought as such.

[00:27:01] Speaker 04:
Rule four.

[00:27:02] Speaker 05:
Being brought as such means simply that he filed it as such when it was filed, right?

[00:27:09] Speaker 04:
We were following the court's invitation to file a 59E motion.

[00:27:14] Speaker 04:
It would make no sense whatsoever to appeal the fee order and then turn around and have this court rule on the fee order and then go back and file a motion for a pre-judgment interest that the court not only invited, but indicated was part and parcel of the award of the attorney's fees.

[00:27:33] Speaker 05:
It was necessary to make Mr. Brown whole and to have any case where at motion for our petition for prejudgment interest has stayed, has been held to have stayed the running of the toll, the tolling of the time for appeal.

[00:27:52] Speaker 05:
You're claiming here that the filing of this motion seeking interest stayed the running of the time for the filing of the appeal.

[00:28:01] Speaker 05:
Do you have a case that says that's been done before?

[00:28:06] Speaker 04:
Right.

[00:28:07] Speaker 04:
It stated for the period of time until it was resolved.

[00:28:10] Speaker 05:
Do you have a case where they've been held that a motion or a petition for prejudgment interest stays the running of the time

[00:28:21] Speaker 05:
for filing an appeal of the underlying order.

[00:28:23] Speaker 05:
I don't have a specific case on that, Your Honor.

[00:28:25] Speaker 05:
You have a general case on that.

[00:28:26] Speaker 05:
Did you have a case on that, too?

[00:28:28] Speaker 04:
I don't have a case, Your Honor.

[00:28:29] Speaker 04:
I have the statute, though.

[00:28:30] Speaker 04:
The statute clearly states if a party files from the district court any of the following motions under the federal rules of civil procedure,

[00:28:37] Speaker 04:
The time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining entry motion.

[00:28:47] Speaker 04:
And it lists as number four, a motion to alter or amend the judgment under Rule 59.

[00:28:52] Speaker 05:
Now, do you have a case that holds that a motion seeking prejudgment interest is such a motion to alter or amend?

[00:29:00] Speaker 04:
Yes, United States Supreme Court, Ostranek.

[00:29:03] Speaker 04:
The United States Supreme Court has held that a motion for prejudgment interest is a motion under 59E.

[00:29:19] Speaker 04:
And it's not just Osternak.

[00:29:20] Speaker 04:
There's Crowe versus Bolduc.

[00:29:22] Speaker 04:
These are all cited in our briefs.

[00:29:23] Speaker 04:
And Heck versus Trish, if I'm pronouncing those correctly.

[00:29:26] Speaker 04:
The courts have consistently held, and the Supreme Court has held, that these are proper 59E motions.

[00:29:33] Speaker 04:
And the reasoning makes sense, Your Honors, because the prejudgment interest is intimately tied up in making the equities, restoring the balance, restoring the issue.

[00:29:42] Speaker 04:
So I think the jurisdictional issue, Your Honors, is quite straightforward, and it not only makes

[00:29:48] Speaker 04:
dictated under the law, but it makes practical sense.

[00:29:53] Speaker 04:
The cases that they rely upon, the Yost case, the Tricky case, and the 11 vehicle cases, these are all cases in which the attorney fee motion was brought after judgment or after the appealable order and in no way affected the equities or the restoration of the rights or the ruling or the judgment in any ways.

[00:30:12] Speaker 04:
They were clearly supplemental orders.

[00:30:14] Speaker 04:
That's not the case with the pre-judgment motion, particularly, I would submit, in the context of this case.

[00:30:23] Speaker 04:
Turning to the next issue that is raised by counsel, and that is the issue of whether or not Mr. Brown was even entitled to the attorney's fees.

[00:30:30] Speaker 04:
And this is this ethics violation.

[00:30:32] Speaker 03:
Before you move on from the jurisdictional question, I had seen this a little bit differently in the sense that

[00:30:38] Speaker 03:
The first question I would ask is, was the initial order granting the fee amount without prejudgment interest, was that a final order that would be appealable?

[00:30:49] Speaker 03:
And I just look at that, I understand your position is that it was, but I look at that and I say, it doesn't look final to me, because he says, you know, we're gonna wrap this up, I'm gonna see whether you want prejudgment interest.

[00:31:01] Speaker 03:
And, you know, there is a question, okay, if you said, hey, we're not gonna file that, or if the other side thinks you're not, or somebody's wondering if they should appeal now,

[00:31:08] Speaker 03:
But it seemed unfinished to me.

[00:31:12] Speaker 04:
And so why not just say that?

[00:31:15] Speaker 03:
Intent of the judge, you know, proceedings ongoing, no need for 59, because as you point out, the typical question about whether something's 59E or not in a fee petition is in a case where there's a concern that fee proceedings would hold up a separate appeal on the merits or eat up a motion or somehow, you know,

[00:31:39] Speaker 03:
run into that, and we just don't have that here.

[00:31:42] Speaker 03:
And I just wondered if you have any reason that that would not be a way to analyze this.

[00:31:48] Speaker 04:
You know, I think that is another way of analyzing this, Your Honor.

[00:31:50] Speaker 04:
I don't think that there's, if we had certainly said that we don't,

[00:31:54] Speaker 04:
If the time limit had gone by, the 30 days or the 28 days had gone by and we had not filed the most pre-judgment interest, then I have every reason to believe this would have been an appealable order.

[00:32:03] Speaker 04:
I don't think counsel disagrees.

[00:32:04] Speaker 04:
We all treated the order as a final appealable order, but it had this hook in there where the court, somewhat unusually,

[00:32:11] Speaker 04:
actually invited Mr. Brown to file this motion for prejudgment interest.

[00:32:18] Speaker 04:
And clearly when you couple that with his reasoning in the order on the motion for prejudgment interest, it is clear that it is now all inextricably intertwined that the prejudgment interest was necessary to make Mr. Brown whole and to give him what he was equitably entitled to under the contract and the engagement and the work that he did in the theory of quantum rule.

[00:32:38] Speaker 04:
It's all inextricably intertwined.

[00:32:41] Speaker 04:
And it was that, like, for both practical purposes and under, I think, the clear reading or a clean reading of Rule 4 is what is now appealable.

[00:32:49] Speaker 04:
So I don't think that there's any... Right.

[00:32:51] Speaker 03:
I don't want to use up more of your time on that.

[00:32:52] Speaker 03:
You can go back to what you were addressing on the substance.

[00:32:58] Speaker 04:
With respect to the substance issues themselves, Your Honor, with respect to the ethics issues, and certainly I would never want to in any way mitigate any ethics violation, but there are ethics violations and then there are serious ethics violations.

[00:33:10] Speaker 04:
And as the District Court correctly found in this case, this does not rise or come close to being a serious ethics violation, particularly in the context of this case.

[00:33:20] Speaker 04:
Mr. Brown was iced out of this case after many, many years.

[00:33:26] Speaker 04:
Six years, in fact, of very hard work.

[00:33:28] Speaker 04:
The years in which this case was struggling, the years in which the hardest work of this case was to be done.

[00:33:33] Speaker 04:
It happens, unfortunately, many times when you have these large multi-district litigation cases where all of a sudden the case looks good and now some of the people that worked the longest and the hardest on it get iced out.

[00:33:44] Speaker 04:
He did not quit.

[00:33:46] Speaker 04:
He went back to California.

[00:33:47] Speaker 04:
He continued to receive assignments after he returned to California.

[00:33:51] Speaker 04:
As the district court found in his mind, he was still fully engaged in it.

[00:33:56] Speaker 04:
He certainly has a right to withdraw, but he was always willing and able as he testified at trial to continue.

[00:34:02] Speaker 04:
And I think it was these circumstances that the court correctly found that his failure to notify the court of what the court found to be his withdrawal, even though that was not his intention to withdraw, was something that did not rise to the level of a serious ethics violation that in some way constituted a breach of producer duty or forfeiture of any fees.

[00:34:27] Speaker 04:
The district court concluded that Mr. Brown's withdrawal was, quote, not so unjustified as to deprive him the right to compensation for the six years of loyal and exclusive service to plaintiffs that preceded it.

[00:34:38] Speaker 04:
As the Jacobson Court noted, it is quote unquote simply unjustifiable to consider minor, technical, and harmless violations of ethical rules to be indicative of a breach of fiduciary duty.

[00:34:50] Speaker 04:
There were an army of lawyers that continued to litigate this case after Mr. Brown returned to California.

[00:34:57] Speaker 04:
There was no harm to us.

[00:34:59] Speaker 04:
There was no harm to anybody in this.

[00:35:01] Speaker 04:
And there would certainly not be any justification for full discouragement, let alone any discouragement in this case.

[00:35:08] Speaker 04:
And moreover, if there was to be any discouragement, it would only be for the period of time where there was an alleged breach of fiduciary duty.

[00:35:15] Speaker 04:
We're certainly arguing that there was no breach of fiduciary duty.

[00:35:18] Speaker 04:
And that would be for the period after his return to California, in which there was a minimal amount of attorney's fees in any event.

[00:35:25] Speaker 04:
So this argument, like the first one we submit, goes nowhere.

[00:35:32] Speaker 04:
And the third argument that is made here is this notion of the escrow funds somehow mitigating against prejudgment interest.

[00:35:40] Speaker 05:
And that's the one where I think you may have the biggest problem, or one where you may have a big problem.

[00:35:46] Speaker 05:
Ordinarily, when you have an interest award, it's awarded against the party who's been withholding money to which the claimant was entitled.

[00:35:56] Speaker 05:
We have an escrow fund as to which neither party is holding it against the other.

[00:36:02] Speaker 05:
It's held by the court to settle with later.

[00:36:07] Speaker 05:
Why is he any more entitled to interest than they would be entitled to interest?

[00:36:14] Speaker 04:
Well, because you have to look at the circumstances, Your Honor, of how this was set up.

[00:36:17] Speaker 04:
This wasn't an escrow fund agreed to by the parties like the cases that they cite have.

[00:36:22] Speaker 04:
This was a situation where Judge Hogan

[00:36:24] Speaker 04:
after receiving Mr. Brown's petition, took a look at it, and took the exact amount of money that Mr. Brown was requesting based on his petition, and he ordered that that money be set aside, and then this matter was referred to the Magistrate.

[00:36:39] Speaker 05:
Each of these parties, the class attorneys on the one side and Mr. Brown on the other side, each are claiming that that is money they're entitled to.

[00:36:48] Speaker 05:
is counsel fees.

[00:36:51] Speaker 05:
And the court, in order to distribute the rest of the money, I guess, sets a status segment here over the disputed part.

[00:36:57] Speaker 05:
And part of it is awarded in the end to Mr. Brown, part of it to the other attorneys.

[00:37:02] Speaker 05:
But I'm not sure that I see why he is any more deprived or has any more remedy in the form of prejudgment interest than the other claimants.

[00:37:11] Speaker 04:
Well, Your Honor, the District Court rejected this argument, rejected the argument that... Well, I understand that we're usually up here in arguments that were rejected in the District Court.

[00:37:21] Speaker 05:
The District Court rejected it, but why shouldn't we...

[00:37:26] Speaker 04:
Well, I think the district court relied on the plain language of section 15109.

[00:37:32] Speaker 04:
The critical question, and I'm quoting the district court's language here, is whether the appellants unlawfully withheld the funds in question, but what if anything remains owing to Brown to make him whole?

[00:37:43] Speaker 04:
The focus, the perspective here,

[00:37:45] Speaker 04:
As set up by Judge Hogan in setting up this escrow, considering this petition, the gravamen of this petition is what is due and owing to Mr. Brown.

[00:37:57] Speaker 04:
And the district court had a trial for all of these arguments, some of which are being repeated today.

[00:38:03] Speaker 04:
We went through a whole week of this process and determined that there needed to be a combination of an attorney fee award plus pre-judgment interest.

[00:38:12] Speaker 04:
That's why the court expressly went out of its way, and that was the calculation that the court, in its discretion, came up with to make Mr. Brown whole.

[00:38:20] Speaker 04:
That was the court's perspective, and that was, I think, the best perspective.

[00:38:24] Speaker 02:
Is there any case like this one where the funds were put in escrow and there was pre-judgment interest?

[00:38:33] Speaker 02:
Do you know of any case?

[00:38:36] Speaker 02:
We have cases where, because they were in escrow, pre-judgment interest was denied, but do you know of any that go the other way?

[00:38:44] Speaker 02:
Can you cite, do you know of such a case?

[00:38:46] Speaker 04:
We don't have, we don't have such a case.

[00:38:48] Speaker 04:
We, we, we, we, we distinguished the case as cited by- Yeah, I understand that.

[00:38:51] Speaker 02:
Okay, I understand that.

[00:38:52] Speaker 04:
Yeah, there were arguments here.

[00:38:54] Speaker 04:
This was a unique case and no one had a say in this.

[00:38:57] Speaker 04:
I mean, this is something which Judge Hogan did.

[00:38:58] Speaker 03:
Isn't the Frederick County fruit growers case such a case?

[00:39:04] Speaker 03:
I may be misremembering, but, um,

[00:39:11] Speaker 03:
I mean, I should ask this of both sides, but do we have any idea why the court would put such a large amount of money in an account that doesn't bear any interest?

[00:39:22] Speaker 03:
I know there's concerns about safety, but even then, can't one do better than

[00:39:26] Speaker 04:
Why the court put it in a non-interest bearing?

[00:39:28] Speaker 03:
Yeah.

[00:39:29] Speaker 04:
That I cannot answer, Your Honor.

[00:39:30] Speaker 04:
I would have to ask Judge Hogan.

[00:39:32] Speaker 03:
I mean, this was not just the fee amount.

[00:39:33] Speaker 03:
This was also the plaintiff's awards, right?

[00:39:37] Speaker 04:
Right.

[00:39:37] Speaker 04:
I don't think either side was in the position of question Judge Hogan at the point that he did that.

[00:39:42] Speaker 04:
And that was a decision that he made.

[00:39:43] Speaker 04:
And, you know, he made.

[00:39:45] Speaker 02:
In this, the court said that prejudgment interest was inappropriate because the defendant didn't improperly withhold funds, wrongfully withhold funds.

[00:39:56] Speaker 02:
There wasn't any wrongful withholding.

[00:40:02] Speaker 04:
Well, we believe that what was wrongful in this case was that the attorney's fees, Mr. Brown's attorney's fees, is that the district court found were not included in the submission for attorney's fees.

[00:40:13] Speaker 04:
So the right to have that litigated back in 2011 was wrongfully withheld from Mr. Brown.

[00:40:21] Speaker 03:
But the case I was thinking of was just this Frederick County fruit growers case in which Judge Ritchie awarded an effective rate of 9% because the funds had been earning substantially less under the escrow accounts established pursuant to a different judge's order.

[00:40:39] Speaker 04:
Right, and that was the case where they held that the 9% requirement was not proper.

[00:40:44] Speaker 04:
But certainly the pre-judgment interest.

[00:40:45] Speaker 03:
But the notion of having some pre-judgment interest was sustained.

[00:40:48] Speaker 04:
Was proper.

[00:40:49] Speaker 03:
Right.

[00:40:49] Speaker 04:
And we think that certainly you can infer from that, and I think apply that to this case, that pre-judgment interest is appropriate here as well.

[00:40:57] Speaker 04:
I don't think there's any dispute that the court had discretion to award pre-judgment interest on the facts of this particular case.

[00:41:05] Speaker 04:
The rules and the law and the district here are quite clear on that.

[00:41:09] Speaker 04:
And if this would have been a escrow account to which Mr. Brown had agreed or had created in some way, then I would understand the case was being cited by the appellants.

[00:41:20] Speaker 04:
But that's not the case here.

[00:41:22] Speaker 03:
On the hourly rate, it's Mr. Brown's burden to establish an hourly rate.

[00:41:29] Speaker 03:
Was there any record evidence that he had established an hourly rate higher than $350 an hour?

[00:41:38] Speaker 04:
Well, there was some record in the trial in terms of what his rate had been at various times after the initial engagement agreement was entered into.

[00:41:49] Speaker 04:
And I'm sorry that I can't say exactly.

[00:41:51] Speaker 03:
There were like 360 was one and maybe 380 at another point.

[00:41:54] Speaker 04:
There were other rates that he basically put himself all into this case.

[00:41:57] Speaker 04:
He moved from California.

[00:41:59] Speaker 04:
He came back here in Washington, DC.

[00:42:01] Speaker 04:
He rented actually a room from the apartment

[00:42:04] Speaker 03:
Right.

[00:42:04] Speaker 03:
No, I understand all those facts.

[00:42:06] Speaker 03:
When he left and went back and took up prior practice, there's no evidence in the record of any billing rates from that period of time, I'm assuming.

[00:42:14] Speaker 04:
I think we would have to assume, but start with, you know, the 375 back in 2009, but certainly, I mean, not 1999, but certainly over the decade that followed, the rates went up more dramatically.

[00:42:25] Speaker 04:
Attorneys' rates have gone up.

[00:42:27] Speaker 03:
But we don't have anything in the record showing his rate post

[00:42:30] Speaker 04:
We don't, Your Honor, and that's why we're suggesting the Laffey rate, the inappropriate rate at this point, given the unique circumstances.

[00:42:35] Speaker 02:
But this is abuse of discretion, too, right?

[00:42:37] Speaker 02:
This is abuse of discretion also, right?

[00:42:41] Speaker 02:
Mm-hmm.

[00:42:41] Speaker 02:
Right?

[00:42:42] Speaker 04:
I'm sorry, Your Honor?

[00:42:43] Speaker 02:
We're reviewing this for abuse of discretion, right?

[00:42:45] Speaker 04:
Yes, yes.

[00:42:45] Speaker 04:
I believe this is abuse of discretion.

[00:42:47] Speaker 02:
So he could have ordered it, but why was it abuse of discretion not to, given the contract?

[00:42:53] Speaker 04:
Not to affirm.

[00:42:53] Speaker 04:
Well, Your Honor, I think we are.

[00:42:55] Speaker 02:
I mean, how do you make the abuse of discretion argument?

[00:42:59] Speaker 04:
That is a good question, Your Honor.

[00:43:02] Speaker 04:
I do agree that we just think it is clearly erroneous to suggest that somebody in 2007 has the same rate that they agreed to back in 1999.

[00:43:16] Speaker 04:
And frankly, given the other equitable circumstances in this case, given, as the Court has pointed out, the rates and the effective rates that were being received by the other counsel in here, it is just fundamentally unfair.

[00:43:29] Speaker 02:
Okay.

[00:43:31] Speaker 02:
Anything else?

[00:43:33] Speaker 04:
Thank you, Your Honor.

[00:43:33] Speaker 02:
Thank you.

[00:43:34] Speaker 02:
Did Mr. Chynes have any questions?

[00:43:36] Speaker 02:
Any time left?

[00:43:38] Speaker 02:
No.

[00:43:38] Speaker 02:
Okay.

[00:43:38] Speaker 02:
You can take a minute.

[00:43:44] Speaker 06:
Thank you, Your Honor.

[00:43:46] Speaker 06:
The magistrate judge expressly found, this is page 530 of the joint appendix, that Brown quote, nor has he, Brown, introduced any evidence as to his actual hourly rate

[00:43:57] Speaker 06:
at the various times the services here were rendered, except for the $350 rate found in his engagement letter.

[00:44:03] Speaker 06:
So Judge Pollard, I think the answer to your question, the very end there, to my friend on the other side, is no.

[00:44:08] Speaker 06:
There's no such evidence.

[00:44:09] Speaker 06:
He could have introduced that evidence.

[00:44:10] Speaker 06:
He could have introduced evidence about how attorneys' rates normally go up from year to year, what the market was in DC or in California, and he didn't do so.

[00:44:19] Speaker 06:
The Federal County case is an interesting case.

[00:44:24] Speaker 06:
The parties have cited both the district court opinion by Judge Ritchie and then this court's opinion by Judge Ginsburg.

[00:44:31] Speaker 06:
They seem to be a little bit inconsistent even though it's a direct appeal, but the key point is what this court said in Frederick County.

[00:44:39] Speaker 06:
The court said, quote, when funds are deposited with the court, the court undertakes to ensure an adequate rate of return.

[00:44:45] Speaker 06:
The reason the court, this court, affirmed prejudgment interest in that case was because the losing party himself or itself put the money in an escrow account earning a very low interest rate, and this court was like, listen, if you do it on your own, you have no incentive, and you think you're going to lose, you have no incentive to get a high interest rate, and therefore that doesn't protect you.

[00:45:05] Speaker 06:
But the court, I think, was saying,

[00:45:07] Speaker 06:
that when the court, this court was saying, when the district court controls the interest rate, its obligation is to protect the parties, and it's basically that's as far as it goes.

[00:45:17] Speaker 06:
You know, I also disagree with counsel.

[00:45:21] Speaker 05:
If the parties... It seems you're over your minute.

[00:45:22] Speaker 05:
I feel free to interrupt you to ask a question.

[00:45:26] Speaker 05:
Why doesn't Ostranek control on the question whether this is a third, fourth motion or not?

[00:45:33] Speaker 06:
Yes, Ostranek does not control for a simple reason, which is in Ostranek,

[00:45:37] Speaker 06:
the party filed a motion for prejudgment interest based on a judgment.

[00:45:42] Speaker 06:
And that is not the case here.

[00:45:45] Speaker 06:
The judgment here was entered in years before.

[00:45:49] Speaker 06:
So Ostranek dealt with the judgment itself.

[00:45:51] Speaker 06:
And we know what a judgment looks like.

[00:45:53] Speaker 06:
Rule 58 requires a judgment to be in a separate pleading.

[00:45:57] Speaker 06:
It says judgment on the top.

[00:45:59] Speaker 06:
So Ostranek was limited to that situation.

[00:46:01] Speaker 06:
We cited three cases, three circuit cases, 11 vehicles, Tricky and Yost.

[00:46:07] Speaker 06:
that all dealt with the situation, the question.

[00:46:09] Speaker 06:
Now, they didn't deal with prejudgment interests, I'll agree with that, but they dealt with motions seeking to modify or amend an attorney's fee award and disagree with what

[00:46:20] Speaker 06:
What counsel said, the denial of attorney's fees in Yost, and that was the 10th Circuit case, the denial of attorney's fees was in the judgment itself.

[00:46:30] Speaker 06:
The judgment denied attorney's fees.

[00:46:32] Speaker 06:
The plaintiffs then filed a motion, what they called a 59E motion.

[00:46:37] Speaker 06:
to saying, hey, we're entitled to attorney's fees.

[00:46:40] Speaker 06:
And the Tenth Circuit said that was not a 59E motion.

[00:46:44] Speaker 06:
It may have been a proper motion, an attorney's fees motion, but it wasn't 59E that told the time to appeal.

[00:46:51] Speaker 03:
And in fact, the Third Circuit is- But that's because it's all bound up with the merits, right?

[00:46:54] Speaker 03:
I'm still trying to understand what would animate your position as a matter of orderly administration of the law, that somehow this is final, but it's not judgment.

[00:47:06] Speaker 03:
And therefore, there's no opportunity for 59A.

[00:47:08] Speaker 03:
It just doesn't make sense that we would have this category of one where there can be no follow-on.

[00:47:18] Speaker 03:
on the kinds of grounds that there typically would be of something that is considered to be final.

[00:47:22] Speaker 06:
Well, Your Honor, two responses.

[00:47:24] Speaker 06:
I realize I'm going at it.

[00:47:25] Speaker 06:
First, we're not suggesting there's no opportunity for a follow-on.

[00:47:28] Speaker 06:
I mean, we're not suggesting the court lack jurisdiction over their prejudgment interest motion, we're just saying it wasn't a Rule 59E motion.

[00:47:37] Speaker 03:
So whether you consider- And therefore, it doesn't toll the time, and therefore, you're both out of luck.

[00:47:44] Speaker 05:
agree party file appeal in the meantime while that motion whatever style was still pending would the district court have jurisdiction to hear that

[00:47:56] Speaker 06:
I think it would.

[00:47:57] Speaker 06:
And typically, there would be, in a sense, have to be two appeals if someone wanted to appeal.

[00:48:04] Speaker 06:
Not in a sense.

[00:48:04] Speaker 06:
There would be.

[00:48:05] Speaker 06:
OK.

[00:48:05] Speaker 06:
There would be.

[00:48:06] Speaker 06:
But that happens all the time in the context of attorney's fees.

[00:48:08] Speaker 06:
As we know, an attorney's fees motion, pendency of it does not destroy finality.

[00:48:12] Speaker 05:
And when General Lew, when you take the case up on appeal, the district court has lost its jurisdiction over that case.

[00:48:18] Speaker 06:
Well, over the issues that are bound up with the judgment.

[00:48:23] Speaker 06:
But I don't think that's the case here, the pre-judgment.

[00:48:26] Speaker 06:
There's no authority that we found that the pre-judgment interest would satisfy that.

[00:48:32] Speaker 06:
And Judge Pollard, this is a jurisdictional issue.

[00:48:35] Speaker 06:
I think if you look at 11 vehicles, Tricky and Yost, I'm not sure I can give you an answer in the abstract about why that will make sense.

[00:48:43] Speaker 06:
But that's what those cases hold.

[00:48:46] Speaker 06:
And 11 vehicles is very explicit, expressly rejecting the argument, the same type of argument

[00:48:54] Speaker 06:
they're asserted by the government that that brown says here 11 vehicles the the court said the government asserts that rule 59e applies in this case because the judgment the ivy sought to alter amend with their supplemental fee award was the award of attorney's fees and the court expressly rejected that

[00:49:13] Speaker 06:
They said the underlying judgment in this case was the district court's dismissal of the forfeiture proceedings because Rule 5090 only applies to motions to alter or amend the judgment.

[00:49:22] Speaker 06:
It is inapplicable here.

[00:49:24] Speaker 06:
It may well be, in some sense, and I think this is what you were getting at, Judge Blarr, that is sort of maybe a trap for the unwary, but jurisdictional issues and timing requirements, they're jurisdictional for a reason.

[00:49:35] Speaker 06:
The court doesn't have authority, I think, to excuse them if they don't make sense in a grander scheme.

[00:49:43] Speaker 06:
All right, thank you.

[00:49:45] Speaker 06:
Thank you, your honor.

[00:49:46] Speaker 02:
Case is submitted.