ever attempting to settle an attorney so you dispute under rule sixty eight second the court awarded honeywell to pay out of form washington d c rates even though the plaintiffs have never sought to ascertain whether  also now willing to take that up now there's no question that in the court said that there's no question that plaintiff never sought to ascertain whether there was willing counsel because the plaintiffs were not obligated now to be sure the court said three the in effect the risk premium that justify the higher d c rates for the ninety ninety five litigation is just not per se controlling for the separate two thousand follow on litigation and in perpetuity all post judgment five case and forth and finally the new jersey environmental community was well aware that plaintiffs had collected millions of dollars in fees for the nine hundred ninety five litigation so the plaintiffs in effect shouldn't have been able to just rely on the fact that they didn't need to conduct the search because they had already been collecting one nine hundred ninety five rates i mean d c rates for the nine hundred ninety five litigation now there's no question honeywell is not saying you should have gone out and locate additional counsel obviously they have a right to counsel choice the question is did they have an expectation to a continued premium d c rate when they didn't satisfy their burden which plaintiffs have a burden that discreetly irrelevant to a separate case so it just it wasn't it wasn't actually litigated it wasn't before the court it's not the same pace and in any event there obviously was strange circumstances basically it was a different case so even for the monitoring work now they have a better argument obviously for the nine hundred ninety five the monitoring of that work and we would submit that that issue i know is not actually what he did and it shouldn't be law the case because i think it's sort of common sense that when you have a and a statute that says we must pay attorney's fees you to go out interview a firm and find out would you take on this work to moderate a court appointed special master and just make sure that he is doing his job so that's why we don't think that that is control either but i don't even think there's a non frivolous argument for the two thousand and six case if i could go back to the rule sixty eight issue and then and the only other two issues besides the former a pool is the even assuming d c rates are appropriate which we think the court erred in hansing that based on a nationwide legal services index instead of d c based it just acts and then the fourth issue is that the court had awarded a million dollars of fees without conducting what we think has already held that at least for purposes of attorney fees rules civil rights cases are indistinguishable from environmental disputes and really the gist of this is that every single purpose disputing here couldn't this have been resolved by agreement of course i mean we have to keep in mind that there's been fourteen million dollars of history here five million remediation has been paid without you know when there's a demand for attorney's fees it seems quite natural you would respond with an offer of judgment was the district court thinking when it said you couldn't make it rule sixty well what the district court was thinking to be fair was that this report was thinking you but for a for a citizen to have article three standing must have a vested interest if and the whole point of merrick is that rule sixty eight was in existence when congress passed the civil rights laws and by the eternity but if you have an article three say i walk by the river i swim by the river you have the kind of per you know personal invested interest that you have to weigh under will sixty eight i don't i don't buy that argument at all and even if you did buy it it still doesn't get you the like here's the classic example if we're to dispute over in front of relief and i'm the defendant and i say we're in a political junkie junction stage and i say i'll just make an offer judgment that make the point very injunction a permanent injunction and then that has been used as an offer of judgment and then you could debate about whether you know if the court has entered that one then you would have been rushed to undergo sixty eight and i just don't think that's what you have before you now but i do think it would go a long way if you cited merit in your opinion for the the district court err to the extent if you're going to have to see rates the court erred in taking the highest possible measure of inflation based on nationwide statistics that has been overwhelmingly rejected by the district courts in do in the district and since that decision seven different or in the district of columbia have rejected the enhanced index but here's our main argument is that just principles of fairness and consistency say if you're going to make money well pay the highest rate in d c don't it's kind of ironic and it's just unfair to then say oh go ahead look at nationwide statistics at least let them adjust the rates based on this but i agree it's a basically it's a d c based issue and so you know for the third circuit to be opining about you know judge kessler versus every other judge in the disk of columbia it's probably not the best use of your time and i think it's a much you don't even get to that issue if you reverse under the former wall how much difference least the same substance a different affidavit that the substances i'm not aware of anyone jersey that that's it we're done with that issue but the attorneys you dispute even our brief said they're entitled to x amount of fees that all those various categories so that have to be remanded and what's this i just can't imagine this work would go through it but i can walk you through some of the analysis there were two million dollars in fees over whites one of the key categories of fees some of which mirrored but this one last time forcing their consent decree under existing law i mean they can also go out and get a new environmental science degree and give them money that would help them force a consent decree for hi i want to have to pay for that and the court said that even though how this benefits the plaintiffs but i'm sure that's one sure does too but not in a way that honeywell is obligated to pay so that's one of the fees the second one was the bruce terrace oversight now there's the dispute between the parties to you should you have a senior partner can he supervise associates if you have to supervise other senior partners but the court didn't even look at it the court offered no rationale whatsoever there's just nothing in the record that explained it and so i think you know the other thing that would go a long way in resolving this first case the issue of whether or not the rates should be washington d c rates for post judgment monitoring work was litigated in the prior litigation in this case so we have a litigated the rates were litigated with regard to that the district court held washington d c rates this court term that is the law of the case why where are that who all of the case were two separate case dealing with the same it's not a separate case it's the same case the initial case continues to have post judgment monitoring work and that post judgment monitoring work is included in the application that we filed in two thousand and and the application for the twenty ten first at fees so that first case it's fees in the post judgment monitoring work continue to live and so the prior ruling should be applied with court so it's clear which ones go to the first case that it is only there are some work that overlaps the two cases but that work had to be done in the first case so i would argue that the rates issue from the first  is controlling there so when you have a lot of case it's then honeywell's burden to come forward and say we have a change circumstance honeywell has not presented a change circumstance it's dead what they've done is they've pointed to the jersey city lawyers in the case that those lawyers honeywell has not demonstrated that they are working without compensation in fact it's a matter of public record that those lawyers get paid but that's the crux of the issue with regard to playing this is having the willingness of counsel to work for them for free for staggering amounts of out of pocket expenses these cases are very expensive and that's included with the post judgement monitoring it's very expensive we have to keep the experts going to participate in the special master process the lack of case study areas five and six but here they are jason all adjacent properties the second case is a much larger case because it in compass is thirteen different properties the study area seven area is a much smaller geography and really only had two landers alone land owners involved in that case so we presented the exact same evidence including an affidavit from professor morici who is very knowledgeable about the environmental legal community in the state of new jersey and he testified that there are not lawyers willing to take on cases like this the only lawyers honeywell you have a situation where a boy or walking into the case would have to learn everything about these enormous cases and what a lawyer be willing to come in to do that without being if anybody thought that this was a tremendous boon for lawyers no lawyer stepped forward and said to the plaintiffs here we'll help you out here just didn't have is anything on the record other than from the parties and he saying this is the same i fact that there are not lawyers available to him that would take on cases of this size in the district court previously and this court for told everyone that the  y rates issue that is really an issue with regard to the record in the case whether or not one updates the laughing matrix with the legal services index or the consumer price index factual issue that has to be based on the record in the data in the particular case this case and the salazar case are the only cases where the record presented here has been presented and in both instances the court so spammed that the legal services index was a better replication of the d c market honeywell cannot rely on these other cases that were making factual determinations with regard to the records in those other cases it can say that it had to present evidence here to demonstrate that the c p i was indeed a better measure to reflect the d c market then the legal services index it is not done so and the things that the case law looks at in terms of geography and complexity those are not things that honeywell made a record on here first of all with regard to geography we demonstrated that the legal services index better matches the c market then the consumer price index which looks at a very good swath of the metropolitan area taking in west virginia and by bringing in west virginia it reduces the rate of change in washington d c the district court's decision was not in error honeywell presented no evidence to suggest otherwise in terms of the district court's decision making and the performance of analysis with analysis with regard to the hours here the district court in geisha in exactly the decision making that this court requires of it now the district court did not spell out every little detail because the district court adopted the plaintiff's rationale that that doesn't mean the district need to copy the plain this rationale and put it into its decision it was enough for the district court to reference it and say weird that they were adopting the plaintiffs rationale with regard to  these items that with regard to the rule sixty eight issue place argued that rule sixty eight does not apply on its terms t fees these came cases the judgments resolved in the first case was resolved long ago it's not an ongoing thing as honeywell would suggest it came to a conclusion it got appealed it was subject to a certain decision that's over with and honeywell's interpretation of the rule saying that it applies to fees is inconsistent with the supreme court's holdings  because it is dealing with the word cost in the rule sixty eight what we're talking about here is the word judgment tumor yes they are the work cost is defined it's not identically it's similar enough that one would say the word cost encompasses the attorney's fees but that's looking at the word cost in roll sixty eight it's not looking at the word judgment the plaintiffs argument is the is focusing on the word judgement as to whether or not the word judgment means fees analysis is a very good one with regard to the merits of citizen flip a geisha and why it differs from civil rights litigation the fact that you use the rules for determining citizen has the requisite interest for standing but by far the bulk of the air action the interest in the action is a public interest and so what judge brotman was saying what judge is saying in this case is that you don't want to have the citizens essentially caving in to an offer of judgement because they can't shoulder paying the defendants costs and giving up on very legitimate important public interest issues in this particular situation here you can envision this situation where honeywell would keep making offers of judgment if allowed to do that and you would expect that honeywell's offers of judgment if planes had to accept them that they would get lower and lower and lower over time which is perfectly rational here and what you'd have with the plaintiffs is the plaintiffs would be in a position where over time they would be forced to accept these lower and lower and lower offers and the result is there's less money to be able to monitor the consent decrees here to make sure the public is protected from the chromium that's being left in place but is being will be reluctant to pursue issues that are in the public interest as they march on for example the financial assurances which are extremely important to make sure that these remedies last in perpetuity if planes are choked back on the fees they're in play this will be reluctant to argue the public interest with regard to financial assurance every time that the financial or surance is are encountered under the cycle bed is dictated by the  change the language rule sixty no i don't think so your honor first i think the language of rule sixty eight doesn't apply to attorney's fees in the in the first place so honeywell's argument is really one to be bet that it causes the plaintiffs who are really the litigators of the public's interest they are acting really primarily in the public's interest there is very little interest flowing to them they are acting for the public and the public's interest has to be caved gone by the citizens in the face of a private risk of having to pay in this instance honeywell's cost so that the plaintiffs are not able to continue the meritorious action that congress intended of being able to enforce our environmental laws and i submit that that is not acceptable that that changes the substance of the actions where congress intended that citizens would be aggressive enforcers of the environmental laws in this country that it was relying on citizens to supplement government enforcement and we should not change that dynamic through the application of rules extract i see that my time has expired i would ask the court to please firm the district court because the district court was correct in its decision making  a environmental suit and that is just all the more so in an attorney city dispute if the honeywell makes a reasonable offer they can turn it down or accept it they are entitled to all reasonable attorney's fees by the district court decision the construction of the rules enabling act is really fascinating because they're saying although my substantive right i'm the only one with standing but somehow the public's substantive right is affected and that is a very bizarre reading of the rules unable yet so i don't think that gets them anywhere and again i think all you need to decide is the attorney's fees portion of this which has nothing to do with the rules enabling act if i could just briefly go start with the law of the case the other side made no comment how law the case or collateral stoppel could even conceivably govern the two thousand and six case and rightly so as to the monitoring of the two thousand and five case i would ask you look at your prior opinion and in the section on jurisdiction the court went on to say look there's only a portion of this it's been resolved there are other pending orders before the district court and those other pending orders dealt with post monitoring fees but even if the court decided it we would say that circumstances changed on the form rate roll i'm just  point you to j forty five where the court said mr lloyd did not make an individualized assessment for purposes of study area five and six of whether there might have been some new jersey for out there willing to litigate that the court thought the search was not conducted and a search was not conducted on the lab be in the x i would just point out the irony that if they get the enhanced rate they're getting paid more than their chances of getting that kind of rat a columbia because every other court had had rejected it and finally on the articulation of the thorough and searching analysis the court would say well just go read our brief because that's what the board adopted but again the court on the face  at its opinion said i just credit the reasonableness i'm not going to second guess the staffing but at most even if you accept their argument then you've got to read their brief and you will find a very persuasive because it just repeats their affidavit and i don't think that that's a