receive but not a rate that is based on anything real and tangible and the purpose of the statute referring to a prevailing rate is we want to provide level playing field based on a free market so that parents can have adequate representation in cases but there are some plethora of cases that explain that that does not mean there should be a windfall or even that the rates paid should be you know at the highest levels of d the largest firms in the country and i thought i thought the trial court had multiple affidavits including from the two attorneys here and from others in the community about the ra client all these reads are built on error a foundation of sand basically you say you know i'm worth this amount as judge guilford said in the quote we put in our brief i'm worth this amount the same district court judge in this case and issued a warning and in a case called antelope valley to the same lawyers as in this case and if you look at the underlying decision in that case it's based on nothing want ten thousand dollars and we might say we'll give you five thousand dollars ok it's a fair point but i thought they received similar awards so that would be circumstantial evidence is that not accurate no that's not accurate run of none of it we put in our own  of claims rates and d settlement just to show that these particular lawyers are seeking a claimed rate that is beyond even what the other lawyers similarly situated were claiming but in none of those cases was there ever an actually have to find someone who's paid in a similar practice area so for example this case was before an administrative law judge of the office of the ministry of hearings and the office of them administrative hearings here's all sorts of cases they hear teacher terminations cases licensing cases that's a field of administrative law for which there are many paid lawyers so you need to get out we need to find a rate that somebody actually gets paid doesn't have to be the parent paying the rate that's one possibility another possibility is another lawyer in a similar practice area or the rd possibility is to also look at the rates paid to the district council but there has to be a way of having an objective rate because your daughter for example i know you've expressed concerns about chevron deference and how we can't just abandon the role of the judiciary it's the same thing here congress has said we want you to look at the prevailing rate is in the  statute like ninety eight dollars and title seven didn't even use the words prevailing rate that that emerged through the cases but what is happening here is we've abandoned that and we said to the court do whatever you want and so the corps is coming up with a rate and then in the next case they say well that judge gave this amount so so we should give that amount too so we're we've now spiraled out of actually what you're going to have is the rates are escalating like a parabola and that's the reason we brought this case well st of all you're right it's not just liquor license you're talking about teacher licenses teacher terminations hearings we are these are these are very severe before the same type of ministry of agency yes the subject matter is is different but the practice area in general is the same but we're not saying that's the only way that's why the way another ways to look at rates that are paid to the same lawyers some of them may have fee paying clients in special ed cases some may have in other practice areas and then as i said what's wrong with the declarations from other attorneys in the community saying their fees are in line with that because it was concluded is no evidence that anyone ever got paid that rate and i will tell you they never do they've never got nobody and there's no evidence in the record your honor of a single person getting actually paid the rate that there are purporting in their declaration they're simply saying this is the rate i claim i've got this rate awarded by this judge or that but there's no actual rate and i tell you that the market would be much much lower if they need it to get paid a rate it would not be seven one hundred dollars an hour it would example the supreme court which we i think you would agree is even be of beyond the th circuit in purdue versus cammy so in produce versus cammy the supreme court looked at the rates claimed and they pointed to the fact that the and that was paid payment rates can be evidence of that but that's not answering judge bay as question which is is it required in some way of course it can be evidence just like anything can be evidence yes i of those cases actually had evidence that somebody in the market paid the rate debt if they all of chills down and that's what the problem is happened here your honor we don't take very many cases from l a in a fight this one we took up because this one has gotten out of cards and so the rates are escalating like a problem as i said so now we have to bring this case up and say no it has to be based on something real and that's why it says prevailing rate it has to be prevailing in the community rate this is a disaster we're delegating to the court basically unfettered and unpredictable power to set rates parties cannot plan their affairs if they have to just well lie on the court make its own confusion in the law in the president that this court must follow in terms of how to go about determining whether a district court abused its discretion in arriving at a fair rate under the law clients who pay that amounts in other cases i don't charge different rates but individual parents also i'm sorry to interrupt i've as part of every settlement and i've been dozens of settlements over these years with the district with this particular district i submitted my invoices at the rates that i've stayed at sixty thousand nine hundred and fifty and we have negotiated the hours you know the discussions have been you shouldn't  taken this long for this particular service etc and then some portion of the bill hasn't been paid by the district that fortune is paid by the parents but the agreement i have with the parents is they pay me the portion that the district hasn't paid  and they have you back done that and they continue to do that they've done that for years that's been my practice so that is absolutely evidence in the record that at least this person who specializes in special education with over eighty percent of  practice being in that field charges his clients the same rate that he charges districts there was also other evidence in the record of actual payments and actual charging by rates that are prevalent for similar services i want to go back to a problem that council has presented that i want to clarify for the fort for the standard needs clarifying and that is these idea that determinations via district cords are not relevant for purposes of arriving at the prevailing rate they are very relevant the th circuit has held over the last thirty years in many many cases that i've cited in the  g that that the determined right determination specially rate determinations applicable to the litigants at issue are very relevant and they are sufficient they are satisfactory basis for arriving determinations by courts are especially in areas of the law where clients were clients generally don't pay for legal services that's why these shifting statutes were an effort to allow just out of curiosity and i know you say you have evidence of this so it might be a moot point but do you agree with your friend on the other side in order to be a prevailing rate it has to be by its client absolutely not your on the law is very the law has been very clear going all the way back to block that that's not a requirement that's not something that if you don't have that you somehow cannot get your prevailing rate feeded terminations are a critical component of of this measure of courts throughout the country over the last four thousand and thirty eight years have been utilizing the have method and council is now you know coming forward and saying this is a big problem we have to address it but council is not explaining that he can come into this case and attack the determinations in the bases for those determinations by the judges in previous cases i think that you know the suggestion that they just came up with a number is inaccurate every single case is based on evidence and that evidence is considered by the court there is always in o'connor evidence and determinations are made based on that evidence not based on some you know attempt by a judge to decide oh i think this would be a good rate which is kind of what he's suggesting every single decision that's been attached to my declarations to show that reasoning can i ask you one other question i want to just change gears for a nd on you in footnote ten of the supreme court's this determinations by hensley and blom and others by the supreme court which consistently hold that the determination on fiancee should be done independently of the determination on the on why because you know it doesn't matter if you lost twenty percent on the underlying case what you have to look at is was the time you spend in trying to get your fees a reasonable expenditure of time and it would be quite arbitrary to simply apply the same percentage without looking at the specific work that was done in determining whether it was really necessary or or unnecessary and the court went through that analysis and determined it was it was necessary i'm not suggesting that a court would not have the discretion to award a similar percentage cut there are many cases that exist that some of which counsel cited that that say that they do have that of discretion but none of those cases say that they must do that and in this case the court for both areas that that would be an abuse of discretion and the standard is abuse of discretion has to be something that's clearly erroneous under the law based on the evidence before the court and in this case i maintain that that doesn't shifting statutes often lack evidence of payment of fees but clearly stated that nevertheless attorneys taking such cases are entitled to attorney's fees at the prevailing rate blom also stated that congress did they did not intend the calculation of fiords to vary depending on whether the plaintiff was represented by private counsel or by a nonprofit legal organization so this idea that in a field where most clients are not able to  pay parent parents lawyers by the hour that somehow they should suffer because the parents attorneys and the parents themselves are not able to come up with a multitude of lawyers who are paid by their clients in this particular feel i think that's just the use counsel's word fantasy there's nothing in the law that requires that kind of evidence and the lack of it would it would be of use of the question there's nothing in the law that says that rates many of whom were above ours that are in the marketplace today by paying clients and that sort of leaves you know presents ample evidence before the court of actual paying clients albeit not in the area junior varsity if you will and there's just nothing you know there's no support in the law for that initially the the law is very clear that we don't compare when we make comparisons we don't compare the types of cases it or in any other you know we do the same thing when we you know exercise our skills in conducting legal research saying with preparation of the thing or a lot of human conducting trials except the services is what the law case is reflected in the official of the hours not the lot star rate of the attorney so you know the district had a chance and did argue that we spent too much time in this case in terms of in terms of thousand and seventeen rates although we think that's irrelevant to determination of the prevailing rate in two thousand and nineteen you know counsel defined prevailing as current and counsel is right  the law requires determination of prevailing rate which is the current rate that's defined vioxx for as being the current rate of problem with the data was that she shared that with the district's expert hooper's who then prepared to their full ration and represented to the court that those were the rates for two thousand and nineteen at the time that the determination was being made and that is why we went through the effort of special education and that top seven hundred and fifty dollars as shown by the evidence in the record and we surely you know in the determination we received from the port we certainly came in under that so we're well within the reasonable in this range and the only thing it says is in one case one client paid him fourteen percent of his that's the only evidence and if the court were like supplemental briefing i'd be delighted to show the record on that this whole other  this all the time i have a that is all not in the record that's completely inappropriate and we urge the courts look carefully at the record the only other evidence that my posing counsel mentioned that would support an actual rape is the expert declaration that talks about rates paid to all sorts of large firms in los angeles this doesn't give the court any guidance at all of this could be for any kind of work for any type of case it is completely not relevant to the market here it's very important if you look at the supreme court case in purdue vs kenny in particular the age five hundred and fifty seven footnote seven the supreme court is very careful to explain that we do not want to start giving winfall rates in these types of cases and they compare their rates to the rates paid to counsel who work for the state and they say it would be completely out of whack and just the par i would look at your community market rule over in the th circuit in the end your decision let him in as as a guy because you know the circuits have to be aligned and that kick in that instance the six circuit does not allow for rates to be way out of whack with what what would be necessary to encourage representation in these cases so we think this is a smokescreen they don't want you to get past the reality that it's a foundation of sand if this court does not look carefully and that we will be back here again i promise you in a few years when rates will be one thousand four hundred dollars an hour and at that point