honor the guy in the misapplication of the principle is that the rates must be from the form based on the donovan case factually there is no evidence here that you think back was awarding the raise for complex federal litigation now what the court decided was that those particular lawyers their skill set didn't arise to the level of other complex federal litigators there's no question here about the skill set of the plaintiff scale that would say that the rate should be lowered to make that adjustment that's just not an issue and again i hate to be a stickler about the statutory tax but it says for the kind and quality of services furnished so if the services being furnished are a simple will the rates would be different than something like for a class action complicated class action charge people charge different amounts sometimes it's the same person but most likely it's different people people who handle simple wills charge maybe a fixed and relatively modest fee or a relatively modest per hour free people who deal with complex class actions charge higher rates this isn't that the question here yes your honor that is a big part of the question because the district court skipped over that evaluation it didn't determine whether or not the district met its bur under huffington of coming forward with specific evidence that covington requires that quote when the government attempts to her but the case for requested rape it must do so by equally specific countervailing evidence the district did offer evidence here but it's evidence just was not sufficient the evidence must be relevant to the market and the district isn't the district  represented the us attorney's alun matrix however that main tricks is not equally specific countervailing evidence demonstrating that the rates are complex federal litigation in concluded that look there were decades old now right there not as refined as of the roots could be in the tall abuse of discretion i mean i understand your argument i completely understand your argument not saying i agree with it but i understand your argument none of those factors demonstrate that those rates reflect the prevailing market rates for complex federal aviation the us attorney's office matrix i understand the argument that i get t matrix ok can we i'm saying not being from from the government side yes we use those words because there are so many different variations on these things but you are asking that the ellis side lap the matrix be the one right that's that they applied to complex that are litigation in d c the district court tried to apply that same presumption to the usa airlines matrix and in the process jumped over the whole analysis of whether or not that matrix satisfied what he was supposed to be doing in the first place he supposed to be selecting the community rates for similar work in the community and he jumps to as an abuse of discretion here because he misapplies legal principles he jumps to this new l n matrix with out putting the district to its burden of showing that back matrix reflected the rates for complex federal litigation i see can simplify and your argument is you hang in with the plaintiffs matrix the pictures which this court had accepted in salazar read coming up most recently in salazar as an acceptable at least sufficient for presumption right ye more years in hawaii charge for wiltz and he would say that's not good enough to overcome the presumption that's right which doesn't actually not quite like that but that's the legal argument you're making that is their argument we're making that they did not come forward with equally specific countervailing evidence as required under covington to show that the l s i laughing matrix rates the ones playing that's requested don't reflect the market for complex federal litigation and at the same time they did not offer evidence to show that the usa oh a l n matrix rates represented rates for complex federal education if you're right about the first point we'll get to the second point is that right that's why i keep asking what are two separate questions if you're right that the district didn't sustain its burden of showing that there was anything wrong with the  is cross checked against the market day that that plane that's offered so even though it's a little bit older date yeah and it's being adjusted through an inflation index and what pla be decisive in this case but what i don't understand is given all the effort that the plaintiffs went through here and the fact that there are lots of plain just like you and other federal complex leaders why don't you just hire a graduate student in statistics who can do either take from alabama and now i'm custom survey a survey of everything or survey all law firms in the district of columbia and come up with a new matrix it just doesn't sound that hard this is like building one piece of old software on top of another piece of old software on top of another until the whole system breaks why don't you just do this you're out of because it would be a pretty a pro bono computer scientist just like there are comparable no lawyers there aren't that many law firms in the district of columbia and you do a survey of the rates they charge i don't understand why this is expensive when that i know that your argument but that's the second issue the first issue is did the district court use its discretion in rejecting the law for the second one and i was about to ask you to focus on that because it seems to me you can prevail either by showing even if you can show that the district court abuse is discretion rejecting what you write you know separate argument right that that there is that the evidence behind the new separate but it's and if you're right about that it's got to go back right it's also the district court in abuse not discretion because when it was supposed to be looking at complex federal litigation rates for d focus on that what do you see is the primary in the defendant's matrix in the district court except the primary defects are number one you know it doesn't relate to complex better litigation in d c it is based on a survey that collected data on all legal services particularly now i'm late again sion services like will and bankruptcy and real estate closings it's not specific to d c now be looking at the underlying surveys data allows us to see l m survey breaks out the rates for d c maryland and virginia and if we look at those rates they were grades for maryland and virginia are substantially lower than the there's there's no indication that any of those lawyers are captured in this survey for work that they're doing that might be complex federal litigation if we look at it across the board today a joint appendix hypothetical i understand what you're looking for you want i guess what the statute requires this is a mistake is a question suppose you had a survey of oh lawyers handling complex litigation in the district and by those i mean all the way or whether their offices are in the district or in bethesda or fairfax but will years handling serving happen to have their offices in the near in suburb your complaint as i understand it is it looks like from what and i'm just taking this from your brief that you know a lot of them were surveyed here could have been from rural m the data for the south atlantic region comes mostly from berms identified as general law and only seven of the five of the firms in the whole region are identified as litigation firms with five of the firms being insurance defense litigators there is no evidence that we have rates for the similar type of work that is the issue here forty nine of our opening brief but the idea of collected rates were charged to rates actual rates is a question of whether or not there's a discount with regard to the rates and we demonstrated that the l s i laffing matrix rates do include a discount because there are approximately ten percent below the if it's it's not an abuse to consider that factor it's a big debut some by not factoring the evidence that plaintiffs put forward to demonstrate that they were offering evidence that showed rates charged and that rates that were discounted plaintiffs put in a lot of evidence from complex federal litigators that testified as to their rates and their rates were comparable to or above the l s i laughing matrix the district didn't come forward with any evidence from complex federal litigators to show that the new air land matrix reflected the rates for complex federal litigation in d a number of serious problems with the l assigned matrix rates as well as the market data that the plaintiffs put forth to try to support them straits as being reflective of the community and prevailing market rates wasn't it the second question was of discretion for the district court to accept the usa old meter experience no it was not again the district court identified a number of significant positives about the usa all matrix being superior to the the action or procedure that's not rural maryland and roe virginia and there's no it's impossible to tell from this state what percentage you came to maybe you can book a book i mean if you know if ninety five percent cases is expensive litigation so it can't be that by including you know huge numbers of a lawyers who are not in the district and the legal work that's not only not complex but not with matrix is a starting point so you also have to have evidence of what is the community prevailing market rates that you can do compares and i disagree with the plaintiffs that the district it produced that evidence the district produced evidence of comparable complex warriors in centerville monastir and ash are charging for simple wills charge the same amount either collected or billed as the large law firms in washington charge they're not outliers outside of the university so if you have a dataset that intentionally includes rates that are neither complex nor district of columbia i don't understand how we can give any weight at all to that dataset mao maybe we can move on to the few relatively few examples you have about settlements by the greed which have their own problems but you don't have a matrix at corrects by taking wong numbers on one side and wrong numbers on the other and hope that just randomly or by accident they averaged out to something useful i mean that is you would agree that alls in centerville are not either to use the statutory language rates in the can prevailing in the community in which the action is proceeding that is the district of columbia or for the kind and quality of that he didn't but but at least that rate that matrix is based on complex litigation that doesn't help you with respect to the defendants making the venice matrix is unacceptable under the statute unless it's based on complex litigation in the district of columbia you agree with that i mean unless it measures up that's the point that's what i mean i think that's the point so so the data itself no doubt it was  compared to see if this would be ok like one of the comparatives was comparing it to national rates right that's her top ten percent that's right the she had any idea whether the top ten percent has any relationship to the chart but to the fees charged for complex litigation in the district of columbia  nothing you know she was anything with bankruptcy rates right those were her checks and the other point about this is you wouldn't need to make those kinds of checks let me sit back i understand why the government your expert would not have needed to make these checks against the top ten percent of national rates or bankruptcy rates and therefore run into the problem of not knowing whether those are comparable if the experts simply survey rates charged for complex litigation in the differ from the one the in the year twenty seventeen that's the question why make it some difficult well i can't answer that question when i can see that you have to go to your rights in which case i would expect the evidence in the record to say that that affidavit which says you know it would be really perfect if we could get the actual rates charged for complex litigation in the district of columbia but we can't get that so with the inflation factors and they did double check it against whatever current rates they could find with and that was accurate right well and so if you if you if you like i can jump to the market at it had and double checking the market out of the district court if you're not  that market data wasn't helpful and for good reason it was contrary to this court's decisions and concerned veterans and covington immediately because it wasn't the actual fear that someone received it was the fear of what is the evidence that the as being different and i'm asking the question whether we have to begin with you have some understanding that the matrix rates go completely out and if your argument about the plaintiffs rates is that they are billed and not received and your matrix is billed and not received then we have to throw your matrix out completely and the district court didn't do that the district court only complain about the plaintiffs matrixes not being received no the district court complained that the market data that they produced to support their tricks was built and not received the actual nat of the l s i matrix we don't know what that data is built on we don't know thousand built on receive are good and we don't know but you know that the matrix your resting on was built i believe that's right but i will say the market evidence the civically so these are the field applications that were submitted to create a joint appendix seven thirty nine the table that they really that they tout as being the market evidence to support the matrix that's contrary to what this court said you have to produce as a because that's that's that's amount received not in the bill that's right and the concern concern veterans explicitly states that the data about the field ward in other cases helps ensure that there is comparable treatment they did exactly what they did in the salazar and we said that was enough so that's virtually an a ruling of a law that it's sufficient for the presumption now it's your burden to come up with something else no evidence that it refers either to complex cases or this market when that happens you're stuck with the presumption unless you can beat the presumption so under those me the question is whether you have any evidence to the contrary when you come home with no mean tricks all you have is i mean what's the total number of market data points that you have that are not from the matrix  believe there's there is eight to ten cases that that they're included but quite frankly plaintiff's market data also supports that when you actually look at what the fees were awarded to page twenty nine of the reply brief they had to concede that once you look at these awarded in their market data it's actually more comparable to the usa you know matrix market than to the alice i market they have various reasons as to why you should disregard those fees awarded but i think concerned citizens says otherwise that that's what you're supposed to look at and that is the evidence that you put forth to establish whether or not a particular matrix is is going to be used going forward in a particular case or the questions from th submitted on friday in lewis goes through a lot of the analysis of that i think to the court's concerns i take the course concerns with our matrix it is not perfect there's no doubt that that's the case it is a reasonable effort to update primarily the concern was that the last feet rates were very very old they were thirty years old right but ok you say it's not perfect right but can you can you tell us i just have two questions about the data here can you  believe that complies with the statutes requirement because he basically only well i think you knew go into what the census considers in in putting together a geographic area it has to do with whether the people you know a substantial number of these people it has to be complex litigation in the district of columbia so the census would be helpful if the definition of metropolitan area were including all people in the metropolitan area to do complex litigation in the district court then you have a the government should you know can you do a survey that's more neatly tailored to try to get a complex credibility issue where the government tried to do was use existing data to update things and to the point about the census again this is the the statutory issue and we've got the government's new version which is brand new it's much more today no question about it but the question is is the data relevant and with these two choices before the co t which one is is required to accept i don't understand why you have made the case at least why with with a matrix that is focus on countless occasions in the district and one that isn't why alleviation doesn't actually say that one hundred very little there to the part of the reason why this court blessed that to the extent you can say that in salazar was that there was no competing evidence really offered there this is an effort you know that the us at the new usa oh matrix didn't exist in concededly not perfect but it is sort of the best thing that you could use to update what is very very old data you didn't a statistically reliable way i'm to the extent that you know there are there may be things on the low end of that are included i'm going to make a point problem is that what constitutes complex for litigation is not at all clear so you do cast a wide net and the alternatives are this your blonsky declaration which doesn't say anything about health exactly she just sort of you know reverts back to  judge can rely on it at all without it being an abuse of discretion to rely i think in comparison to the other major cities it is it's easy to shoot it in part because it's would create an actual matrix if it has whatever amount of money it cost and i again i'm dubious that this is a particularly expensive proposition to get them to run a custom maker extended ought to be able to run the kind of custom matrix it would apply in this case certainly the government would object if the top billing rates at arnold and porter for complex i litigation were used in a simple individual ideally a case where a player single plaintive wins about that plaintiff's trial you would object to that i think that's right of course so beg both sides here whatever the result in this case is to come up with a matrix does not have to be perfect but it has to have the right beat up so i became a minister did you want to say something well i just want to respond to that i think that you and that's why i started with the growing consensus that the usa the new us cell matrix is better than the alternatives that we've had before there is a growing consensus developing in the district where that would be disrupted were this court to say that you'll never say the same thing about the many years of consensus that this other matrix is presumptively ok as a status by this court so i don't know who's consensus i weigh more our court or the district court but unless the district courts have an explanation happened how many cases come from jurisdictions that we know charge less there's no reason that a consensus is the way we're going to resolve this question we actually need a matrix i understand there and and to the extent that it's not spelled out in the mail and survey exactly the number of people in the various rates i think our view is that because it's more recent and because it statistically reliable it's better and that because it's a meet the standard would we remain that for the development of a homemaker x to apply to this case or would we just send it back to the district court i think that you got would we do i think that you could look  concensus over a matrix it doesn't meet the statutory requirement doesn't help us but that's all we have we are really our only job here is to is to is to ensure that the rates that are produced are those that you can look at the other evidence the district submitted in support of the rates that are comparable to the us attorney matrix it's hard for me to answer that because you were think that it was not an abuser's disc thank you i assume there is no time left to give you one minute if you could answer during that one minute there are arguments about the market data on the market data that we litigate things but the cases they were poor they pointed to were institutional reform cases and they were awarded fees based on the u s attorney's old laughing matrix that matrix was built on rates for complex federal litigation just as the l s i laughing matrix is built on rates for complex federal education that's where we should come out and difficult to get lawyers to do affidavits i don't know whether or not they would respond to a survey and provide their grades but it's worked by all as how expensive is a footnote there that directed the reader to the twenty ten and twenty eleven l m survey that said it was available for purchase we went to the library to see if we breath and then purchasing it because we wanted so much money for those surveys we ended up having to buy the twenty eleven because we couldn't get it through a library i don't remember the exact amount that it in the government's brief it said it was seven hundred dollars for his asking i'm not asking you actually how much you're getting paid for these briefs people here but it's got to be more than seven hundred dollars