by explaining the ways in which the district court here abused its discretion under the clear precedent of this court the district court abused its discretion by setting rates using rates that were below the prevailing market rate the is that if you look at the underlying motion papers and help me if you will understand what went on appears to me that you you win and and roll latest star billing rate and you didn't argue as i see it for anything else the government on the other hand essentially said you are entitled to anything and then the decided that your approach was wrong but you hadn't given him any fallback position so he made a calculation that you hear now and challenging well it is true authority for the proposition that if you ask for his current rates a judge decides that a court adjustment is not going to be granted and instead you should be awarded at historical rates that the judge is then therefore allowed to ignore the evidence of the record of those prevailing market rates at historical rates and set below market rates of evidence was there in the record of the historic or rate for example the year two thousand and twelve which was the last year of the litigation those rates were both which which is what we asked for everything for those are both historical and current rates so how can that be because we asked for time in two thousand and twelve we were awarded  over sixty hours for a time in two thousand and twelve so we made a few motion in two thousand and twelve so in that sense those were historical rates but they weren't historical for the previous years never issue that is correct but the court ignored that evidence of what our rate should be for two thousand and twelve he warded us time substantial when you look at that as your argument regarding the prevailing rates rather than  you present evidence of prevailing rates current prevailing rates that the court has to look at that and the historical rate as well what your strongest case that says that this is the strongest case would be  the most or case where you need to that your court needs to afford the rates proffered by the attorneys a presumption of reasonableness we proffered rates for two thousand and twelve for work done in two thousand and twelve but that doesn't help you for the previous years if you wanted to the court wanted rates for the two thousand eight thousand and nine i think years two thousand and ten thousand so for those years that doesn't help you to make that argument that the court has to consider the evidence of prevailing rates that the district court was of the view that in that it was inappropriate for you to request prevailing rates at the current time for the work that was done years previously and no evidence was presented regarding that time period so he made the decision as to what the historical rates were for that and i'm curious as to how you know what kate says that he abuses this question in that regard ok so you are correct in that the rates that we proffered for two thousand and twelve are only helpful for two thousand and twelve but then we also offered evidence of evidence in previous years for example in two thousand and nine i was awarded rates in a civil rights case in los angeles and we pointed to that in the record poems in your declaration that was absolutely my  declaration chris ford co counsel on the case was awarded rates for the same case in two thousand and nine that was in his declaration i believe as in my declaration as well it was also referenced in carroll so both declaration so those two thousand and nine rates in cases where the federal government is the defendant you use historical rates however two pages later and that same epic decision it says that you can have an upward adjustment and that parties may be entitled to an up agree with that argument which i'm not necessarily thing i do how do the district abuses this question at that point so at that point when the district court completely within his discretion said i'm not going to give you that part it just meant and said i'm going to give you historical rates where he erred was by not looking at the evidence in the record which we proffered and then well i wanted out to hear did you argue we have evidence of historical rates in the record and here they are did you argue that to the district  here is the rate we're requesting that wasn't the way it was couched now to the district it was this is the rates that we think are reasonable for two thousand and twelve and here's the history of our if we want this right for all of the work we've done that was that was going west it was kind of a rol part of the fault of the federal government in the way they litigated this case that the judge sent them back to do a new search because there's there's search was inconclusive there  so so and if you i would i would like to also address how the district court abuses discretion by the cases it relied on in setting those two hundred dollar an hour rates it relied on blackwell and blackwell actually stands for the  proposition that two hundred dollars an hour is below market rate in that case the court awarded two hundred dollars an hour because that was all that was requested ok here's here's here's a question i've got it does seem to me of the district judge not the most recent  the district judge that actually awarded you the fees based on two hundred dollars an hour that's a crazy rate to give for all of the work performed when that raid comes out not  evidence that you put in front of the judge but independent cases with lawyers who are not you and whatever when you got some work that was performed in two thousand and twelve and two thousand and eight i mean the flat two hundred dollar rate across the entire thing seems to me just just wrong on the other hand what's the do what are we supposed to do with the fact that the you asked for something that you weren't entitle to get at least the judge was perfectly permitted to say you weren't title to get and you didn't really run through saying ok if you disagree with us and we really are going to have to do historical range let me lay out for you here's what the ray should have been in two thousand and eight here's what it should have been in two thousand and nine if you didn't do that now the judge could probably have pieced together by looking at your declarations and looking at the declarations of particular sabel and burke but you didn't lay it out from the way what do we do if we think the judge was just flat wrong in giving you two hundred two hundred dollars are we supposed to then do or allow in the magistrate judge to do it all the judge was wrong abused his discretion and i'm going to go back and do what you didn't really ask the district judge to do but i'm going to go back and do the best i can that's what the magistrate judge did of course but then when it comes up the judge roger says are sorry you rolled the dice you just didn't give enough information in the form in which the judge was required to look at what would what do we do with judge wanted to switch the form of the law which controlled in their motion for reconsideration and also on the morrow decision where they wanted to introduce new evidence need new affidavits that weren't previously before the court we are not in our rule fifty nine a motion did none of the above what we did is we said ok that's you know if the judge wanted to set the rates at historical rates that's completely within his discretion no problem what we're trying to do you in that motion is point out to the court look you overlooked the evidence of what those historical rates should be we proffer that evidence we met our evidentiary burden that you were on a fifty nine and yes and so what's your best  support your argument that she erred under rule fifty nine he says that's a different standard yes this is that's clear air and it's clear air to ignore evidence in the record so all we were saying is look no problem you say that we should get historical rates you don't want to give us that operate it just meant no problem but we met our evidentiary burden we put those historical rates in the record and so all we're doing in that motion is pointing to them and then here as judge parker pointed out chose to roll the dice they presented the district court with a single option they asked for all of their hours to be awarded at their current two thousand and twelve rates they provided no requests for historical rates they provided no attempt to justify what's the government's objection to simply asking a lower court to correctly calculate the fee you know after all the response of  was based on the two thousand and six thousand and eight rate which was based on case law from that time period and i was also the time period of an eighty percent of the work was done in this case the cases that is a court site were representative of other cases from that time period with the government cited as well as other methods all of which we pointed to actually a few below two hundred dollars for those years but the government suggested rounding up to two hundred dollars and and you know there are cases even from two thousand and twelve i could point your honour's to and which the court in the northern district awarded two hundred dollars for two thousand and twelve attorneys so here it was incumbent on the the others the other side asked for all of the rate all of their power to be awarded at one rate the district court accepted that approach but as the law required applied the historical rate that was most relevant to when eighty percent of the hours were work here and but but if we're looking at historical rage with respect to these lawyers and this case we have evidence in the record as to feel wars to the to these lawyers for two thousand a nine which was well above two hundred dollars i mean the district judge goes off to two cases that are not his cases and says two hundred dollars flat rate for all the work performed in this case for all the period some through two thousand and twelve for all said so just go ahead and here in this particular case it was incumbent on the other side to do more than just produce some evidence in the record of what their rates might have been insufficient evidence on the record that they've put into the record from which to calculate historical rates yes your own early puts you this way you're either because they do not argue in favor of historical rates and they do not point that's not that's not my question the is there insufficient evidence in the record from which to calculate historical rates yes and that is in part because the government did not have the opportunity to respond and if i can point to the two thousand and nine opinion that they rely on and that came up to district case it was a class action which this was and it was also a settlement of a class action so there was no adversarial process about the rate so it's not clear that that would be the prevailing rate in the northern district for for the case even in two thousand and nine and the district in the government didn't have the opportunity to argue that because it was not presented as an argument in well you know they're going to leave the government rolled the dice too because basically the government's argument was you got nothing you know your i mean the government argued for a two hundred dollar radar rate to use the rate from two thousand and six it injustice because we're here on a fifty nine eat not to really really value away what the courts did but whether or not there is a manifest injustice in justice if the rule fifty nine emotion were not granted so what's your response to that we're here and that's our standard so would you address that at least through your honor and carol versus not just on in other cases this court has made quite clear that a rule fifty nine emotion is not the place to raise arguments for the first time and is not permitted to raise arguments that could have been raised earlier but were not and that is precisely what's happening here and it's not a manifest injustice for a court to award rates based on the arguments of the parties and that's what happened here and based on case law from the district in which the case was decided as i said other case of the district court could have relied on and that is not a man of his and justice as judge roger said you know that it is not in for no two page eight of the excerpts of the record it is not the district court's responsibility to scour the record for alternative arguments in the moving papers in front of judge where he is specifically directed to the declarations of the four attorneys who did the work and specifically directed to the declarations are still valid birth so we're not scouring your says here look at th honor in order for the judge to have drawn he would have to draw any number of inferences from that in that data to conclude that the prevailing rates for different years were whatever kind of now claim them to be but if the argument had been made we want current rates failing that however we're willing to have historical rates and if we're giving us historical rage look at and then go to page two eighty two that is the moving papers in front of judge where look at the declarations of the four lawyers and look at the the work and look at the declaration of carol sobel look at the declaration of thomas burke there you find the information that will allow you to do it so i don't think he has to scour the record the problem as you're quite rightly pointed out is that they don't ask for it it's not that hard to find it right there but they didn't ask for the problem is only half the story because if that argument had been made then the government would have been able to it's kind of an incomplete record if the court's going to look at it and that's that's the difficulty i have with what interest is the government have in defending it improperly computer great first of all i mean beyond improperly calculated your honor i mean the government has the same interest that district courts had and that is not doing work that you know wasting judicial resources wasting the time of the governmental can we are you are  judge you're called on on to do things all the time i'm better you know chores are onerous but that's what you get the big bucks for but it is a read the papers reach a correct result even though the interest was at its absolute zenith they were asking for their fees they were seeking their fees and they made it the choices you want to put up to roll the dice to seek the greatest possible fiord they could get and they made no attempt to help the district court in any alternative on his own and i guess go out and find cases of his own i mean the logical conclusion to be drawn from what plants are theory is is that plaintiffs don't even have to request rates to the district court they can say district court here are ours here are billing records here's two hundred pages of randomly selected rates from different cases it's your job to go through and figure out what the rates are not even tell you what all rates on the pages of randomly corrected rates is that was in this record well it is a collection organized you know it doesn't it's not organized according to y point that the government was not invited to challenge the actual historical rates evidence that's in here given the nature of the argument that i get w four of us get current rates but i have to say that i didn't find the evidence in the record very hard to read yes that's true but your honor in order to get from that evidence to the prevailing rates in the northern district for this type of work in this year  would require a number of inferences and could have used the guidance from the plaintiffs in terms of so for example in judge westmore as opinion two thousand and eight rate that she chooses for judge for attorney flynn she relies on a two thousand and eight billing rate from  respond to that now how is it just a court has to go through that and figure out so even though there are rates pointed out throughout those declarations there's a lot of inference is that would have to be drawn and that's why it's important for plaintiffs to make the necessary arguments and to direct the district to point to the not just include evidence in the record that might be relevant or might be helpful but actually analyze it and do the analysis and aid the district court in that way what's the government help i'm sorry i'm getting stuck on this but what's the pay that's what you're going to pay and yeah and also we don't want to go back and have to do work that we would have done the first time around i mean we've already spent you know extra time in the real fifty nine emotion we spent time on this appeal to just records judges or  magistrate judge in a district judge and spent time on it and now that it's a court judge is going to have to go i can do it all again and this was all could have been avoided if plaintiffs had just made an alternative argument the argument that they're now making in that they reserve and you know under this court's case law that's why plaintiffs can't raise arguments for the for iraq and flew job while that was while that conflict was going on in two thousand and six and it should have come as no surprise to them that information was classified as judge patel found in two thousand and seven and it was not capable of being dishonest use was subdue to see for like four years and that was not the government's you know the government you know filed a motion for summary judgment and if judge patel had ruled in two thousand and eight the information probably would have been released because it was classified it was only the passage of time that by two thousand and twelve it was no longer classified plaintiffs benefited by the passage of time it wasn't something that worked against  or at the fees so in you know in two thousand and twelve judge patel ruled on the underlying and then we the parties file a motion for reconsideration and those motions were transferred to judge where so pretty soon after that where it it here reconsideration was necessary to correct the manifest errors in the fact that the district court ignored the evidence in the record of the story to what do you do with  president particularly in mali and nutraceuticals where we think that rule fifty nine emotions may not be used to raise arguments or present evidence for the first time when they could have reasonably been raised early in the litigation so if the argument you're making now could have been raised earlier it appears that our president says that it's inappropriate to use a rule fifty nine emotion for that but your response the response is what we were saying in our fifty nine emotion is look we're not trying to present any new evidence and it's completely within the courts have to present a new argument no what we were trying to do is say you are completely within your discretion to award fees at historical rates no problem but let us point out where the evidence is that you overlooked judge where ignore the evidence in the record and this court has held that ignoring evidence in the record is an abuse of discretion that the evidence was not presented in conjunction with your argument that you were entitled to historical rates that's the difficulty i'm having that the argument has morphed from what you made before the district court because you can say judge we are here is our evidence for historical race if you decide not to give the prevailing current market rates here's what we thought we were asking for that's the argument you're making today that's not the argument you made before jets we're correct we asked for all time high current ra also is that you can't use roof if you know i'd eat to make an argument that you could've made previously but we were not trying to make new arguments we were just trying to point out that the district court erred by ignoring evidence in the record that was the purpose of the rol district judge where an abuse of discretion if you win that argument then we can move on if you lose that argument you're stuck and want to march to the judge did was to buy that argument to say well two hundred dollars per lawyer