of discretion we've race for the shoes for the court two of those issues involving errors of law rather than abuse discretion two of them frankly or address solely to abuse of discretion let me start with the first impress most important issue which is the question of back the district court found that over time they earned by my clients as police lieutenants who received time and a half for overtime constituted under two thousand g two title seven and therefore would be offset against any back the award this is an error of law decided because the mendoza case is the district court and the pelleas in this case are you today found that new orleans police lieutenants who also received time in half over time for interim earnings rather than permanent turing's now the problem is this the great granddaddy of all these cases describing the difference between interim earnings and in permanent earnings is being versus roadway express in entering earnings are those earnings which the claimant could not have earned had he received the promotion or employment that he in it's really fairly simple in being for instance the plaintiff sought back pay to include over time that the plaintiff didn't get but this circuit pointed out wait a minute if you had gotten promoted you want wanted from city driver to road driver in that case as a road driver you'd be working exempt sixty seventy hours a week so you wouldn't have the time to earn it what the courts if eld from being on down is in this is the magic words if the claim that i could not earn the money due to the promotion basically physically couldn't not legally couldn't but didn't have the time or the new job in one of the cases for instance the new job was that a state trooper and state troopers were prohibited from working extra bore there is no could not there is only did not that is memphis police majors or exempt they don't get paid overtime the record reflects however that memphis police majors don't work much  of the record indicates that the city tries to hold and forty three hours maximum and is the record in this case indicates many of the police lieutenants who are before this court today w voluntary overtime sometimes sixty seventy hours a week to make extra money they're in last the difference the mendoza court and the district court in this case misunderstood the requirements of the statute to say that if the promotion is to an exempt position then no overtime compensation from the nonexempt  position strike that not that overtime from the nonexempt position cannot as a matter of law or must it's a matter of law rather be credited against  pay award now another word for you the distinction you make you earlier said physically could not vs legally could not in terms of the earnings in the  job you should have been promoted to is that distinction a holding explicitly in being or elsewhere or is that a lesson that you draw from the cases your honor say that except from and does in the case of bar say could not have earned because they didn't have the time to or because the new job did well in it that you would you at least for me be alone you would be making more headway if there was a practice or an assertion that while they were majors they would also have been working private security or fed ex or whatever  certainly evidence of that it's very likely that they would in the evidence goes like this the in the proof that city put on indicated that many police officers either moonlighted or  work extra hours at the police department but for instance i believe in the record there is and i can swear to this from my recollection is there's evidence that  policeman work other jobs we sort of know that but but i do and did you assert or have some evidence that people of the rank of major and above did the only evidence we have that majors did is that majors could majors had the time to and there was no legal barrier to no legal barriers but not that you didn't have evidence that it was a regular practice or that there was a particular you know  brokerage or something where people did there's no such evidence in the record your honor but that's really your point that that as lieutenants they got their base salary plus overtime as majors in principle they could get their higher base salary plus private employment that would be the equivalent of overtime at absolutely fair absolutely ok and of those majors they had to be available for overtime uncompensated but overtime nevertheless right in your honor again the the testimony in the record from chief horribly of the memphis police department found in the seventy to decision is that that was discouraged the city tried to hold him to forty three hours in they would rarely hording the chief already go over that so the point is this lieutenants working forty three hours could then work another forty three hours could moonlight another forty three hours either for the  city or for another employee altogether majors have the time to because majors only work according to record forty three hours so they have this additional time and there's no legal prohibition from them doing now to get back to his honor's question when i'm almost out of time i'm sorry i got sidetracked on a need to make one more point the point is that mendoza in the district court in this case misread the law the law is if you've got the time to do the job and there's no loop prohibition from doing it than over time according to being in it's progeny is not a credit over time it's permanent earnings not is three hundred seventy five dollars an hour the error of law is a that planning be the finding by the district court that this case was not novel or complex one of the twelve is a bill standards  direct the court's attention to supreme court rule ten which defines novel or complex in this case finally i'm out of time but if your sentence is to the abuse of discretion your honor equitable may please the court my name is robert meyers i'm also from the memphis bar and i'm here representing the city of memphis in this case the standard or review that's a political to each of the four issues raised by the plaintiffs in this case is the use what you just said i think directly contradicted your colleague of saying that that by saying all four of them were abuse of discretion why do you say that the two he says are issues of law you say are abuse of discretion i don't believe that the court made an error of the law ok but i thought you had said all four were abuse of discretion they are in the as far as i'm concerned this is the first time that i've heard that they're not ok so the back pay them back pay is controlled by the stance you did self and you have to look to the stat sheet to understand what back pay is and what's included not included what's included will as it relates to back pay or interim earnings by the person or persons discriminated against shall operate the back pay otherwise allowable it's a distro requirement you reduce the interim earnings there's no magic there's no complexity here you know we didn't need experts so here are the plaintiffs complain specifically they say well wait a minute we worked overtime and in certain instances we also got out of rank pay for working at the next higher level it's not really fair is essentially their argument it's an equity argument it's not fair that i work hard and now i've wiped out my back pay obligations as a legal matter i thought i heard him say they contend that these over time and out of rank  earnings are not interim earnings but permanent that's what they claim as a definitional difference but i mean that may in fact be their claim but i would say that the law is just in opposite under the circumstances i think being in its progeny are correct in the at the answer is not are you available or were it could you have done it in here and the answer they had question is no they could not have done it they could not have worked overtime there is in my view nothing in the record that supports any contention that somehow their own vailable or lawfully allowed as majors to do any additional work again that's something i think that's new by working hard it's really no different than a plaintiff who had say left the city of memphis and gone and gotten a different job that actually earned more money under that circumstance the plaintiff would have posing counsel with as much as i would love for the lawyers to be able to set their own fees i don't think that's the standard it's the court that sets the fee that's reasonable in the district and the court  their fact the attorney's fees awarded if you look at our our footnote is among the highest attorney's fees that have been awarded up to that point in time there's only one other outlier it was a ward more so this is the second based on my research the second largest attorney for your ward that the court in the western district in order for civil rights or title seven the two thousand and five list as the plaintiff's claim that they should have done originally he would have been promoted the same thing for lieutenant could cook was in that believe seventy fourth position in cook's case he took the s process in two thousand and seven and fared much better and was promoted to major they're just not qualified for promotions they seemed to argue and i couldn't find whether this have been adjudicated in the merits that i take it there are given as the two thousand and seven process in effect shouldn't have happened to the only reason it happened was because the two thousand and five process was thrown out and that if you restart the clock and rewind the clock the two thousand and five list would have continued i don't know for how long but for some longer period which would have allowed them to bubble up to the top as as more places became available i think that's the correct statement of their position in this case think the fact of the matter is that there is no proof that there were enough individuals promoted that they would have reached the rank positions for either of these  is that you have to to run the calendar factual that the two thousand and five process would have would have gone along and no there is no ruling by the court below that says that the city should not have been gauged in the two thousand and seven process and i thought that they did at least introduce evidence that the sixty five promotions that enough of those people or the others fell out retired and so on that there would have been openings had the two thousand and five list remained alive do you dispute that is i don't believe that's correct ok do you have a nice did you present counter evidence on that which that you can point to that not that i can recall at this moment those are ok go ahead we go back to the baccy question and that was the argument made before the district court judge  that that had these folks been promoted to majors that they would have had the opportunity to moonlight at other jobs and is that a practice in the city i don't believe that argument was made best of my recollection as we stand here now in the  well it's just not in the record as to whether or not the majors would be allowed to moonlight or not and if that what is the the is there any evidence relating to that are you aware of a practice in the city that majors have to moonlight in order to supplement their income i am not aware of that practice their argument you believe was not made correct and you're not aware of a practice record but i also candidly would say that i don't believe there's anything in the record that would say one way or the other because there was also an issue raised about a lot of promotional opportunities there's essentially no proof as to what there really would have been announced to each of these individuals i think it would have required such proof it's just entirely speculative the fact the matter is the record does this day was that many of the plaintiffs were in fact later promoted to higher ranks as would have been expected in so to now come back in socially and do that in some form or fashion in gases to which ones would have been promoted i think it's just entirely outside the problem of their image and then the last thing again on attorney's fees the real issue there is what's the reasonable standard  in the memphis area you know it might be higher or lower in cincinnati it might be higher or lower in new york or los angeles but i think the court you know had some good evidence in front of her and took all of that into account  then i understand they have different arrangements in the bankruptcy court and i just don't know what those are all but that's not the standard the fact that in bankruptcy cases they get some different rate or even a higher rate i don't think is the fact mr shelton has filed a subsequent lawsuit so i see i still have four roughly and a half minutes but that's really my presentation on required to use all of it anything else all right thank you coun let me first start by the standard for standard i'm sorry standard of review question with all due respect to not just my colleague but my friend mr meyers we've being perhaps the best way i can answer the question about moonlighting is today should we refer to the language although the court knows it being since the trial court found it would be impossible for being to moonlight while working sixty to one hundred moonlighting as a private investigator and for the county sheriff's department would have been disallowed it is old state patrol job and only became legally available following to his george those jobs can constitute am i right that it's not cited in your brief your honor at least i know it's cited in the i don't want to hold you to your table of authorities but that was the first place i went to look for it and i'm pretty sure moonlighting for majors to judge the district court judge your honor we addressed the moonlighting issue considerably i don't remember arguing to the district court in this case the majors could or could not  t there is certainly no evidence in the record that they couldn't if we were to go outside the record and it could be a matter of judicial notice i suppose let me simply say i suspect that the court would find that moonlighting is common among memphis police department officers but i cannot direct the court to that in the record it is since corrected your argument addressing moonlighting was that it was sort of unfair to take those those earnings because they had put in the effort and they would have otherwise that leisure time so it is true some of your clients i guess got nothing or almost nothing some my clients got nothing because they worked a lot of all of them i saw at one hundred  twenty five thousand dollars worth of overtime yes yes your honor exactly let me briefly address the legal fee issue because i do think that's important and look at the proof in the record the proof in the record both from the bankruptcy court orders in two declarations of experience counsel contrary to counsel's argument is that the standard rate for lead counsel for the plaintiff in this case at the time was three hundred  know you can't just say whatever the lawyer says is the lodestar right becomes the lodestar right that can't be answered well your honor to answer to that one is mr latham's the declaration which is in the record and mr lay term declares under oath as a part of this record that in this type of litigation three hundred seventy five dollars is the lodestar right that's that's in the light of day the lodestar rate i thought was the rate that the court determines to be the hourly rate that's appropriate  awards it's it's always been one hundred dollars less than that i'm just asking whether that's true or not you have no way of knowing me i know your honor i would say that's not true there's a case that we actually attach to our brewery and that was awfully harsh mister would never knowingly misrepresent anything however we did attach a case where the rate awarded in two thousand and six i believe was four hundred twenty five dollars now