litigation approach here which is adequately addressed by the jays decision the rd full paragraph on page eighty four of the record they all j search for extra record evidence violated the administrative procedures act and denied the barnett firm any opportunity to opine on what particular decisions of  decisions of the southern district of florida would be most comparable to the year your complaint is you didn't have noticed that she was relying on these decisions actually the complaint goes that's that's our secondary he didn't have an opportunity to contest the decision she relied on correct but i also if you have what would you have would you have contested the decisions she relied on and we would have examined the records of individual cases from the southern district of florida to see who was comparable counsel and who was not and to see what the rates in all in the great majority of the cases the ael jay cited the rights short time window to seek reconsideration from an a l j and the jays reluctance perhaps refusal to grant extensions of the ten day limit from the time of filing and even from the time of receipt of the procedures to allow for you don't raise this issue in be consideration well wait a minute i see here that you've now cited to all these other cases i haven't had a chance so give me a so look at these cases and to make a different argument to supplement the record i think he could have done that yes could have done that on the other hand the opportunity to address the fact finder reconsideration that after the fact finder has already examined that evidence and arrived at a conclusion is simply not the same as the opportunity to address that evidence before the fact finder has already examined has now retired so we will not be before her if we have agreement and we'll have another a l j so perhaps we'll be more able than she would have been to take fresh look at the district court decisions and see what the most relevant ones are so yes and that would give us the opportunity to address what decisions of the southern district of florida are most relevant which we have not had how how does what the l j did different than what a court does if the court decides that the parties missed cases are precedent that's relevant and important to the decision and goes ahead and considers that and that made that's made clear to the parties in and in the decision that the court actually issues how is it different because this is not precedent this was absolutely not judicial precedent this was judicial fact finding as i say in the great majority of cases it was simply the right that was requested that was awarded so that doesn't tell generally prevailing rates in the southern district of florida i'm sorry i missed the very beginning couldn't you why couldn't you why wasn't she entitled to reasonably infer that the amount requested was the amount that was the you know prevailing rates in the think is the prevailing rate and that's what they're supposed to do right yes and what's the prevailing rate also depends on the type of client and i don't mean whether it's a an affluent client or an epic unions one i mean whether it's a single litigation model client or an institutional client but commands a great deal of legal work the court has noted as noted before in some long cases but the rise charged by insurance companies for the same kind of litigation are not relevant to what the market rate would be for the claimant who has a single litigation matter and right but i guess i'm still struggling to see what's wrong with  the approach in this matter now have the l j said well i'm not satisfied with your showing in your briefs both parties basically have submitted deficient information so i'm going to go outside i'm going to look at these cases and that's it i want to rely on that means that that might present a bit of a different record but in this particular case they said all right well not satisfied but i'm going to look at what these district judges who are more familiar with the market just the get a sense of what the market is like but i fully recognize that it's not directly on point because of the information in there there are factors comparisons of skills for example are not easily made the predominant factor such asked practice areas and years of experience i are limitations in relying on that sort of information but i'm just using this to get a sense of what the market is like i just don't see what's wrong with that i think it's no better than a juror who during a break goes out to look at the scene of the accident the fact finder cannot go on a free ranging search for additional evidence because that that's what brings this case into a different situation than judge just doing that judge when described because judges in ordinarily governed by the procedures of the a a yes and she she was bound by those procedures are a bit when i point so i would take judgments are human and say but why isn't this harmless error because she could always reject your argument so that was what what was requested i have no idea what your other arguments were because you haven't answered my st question of you which was what would you have argued these of these cases but we would have argued that the cases that she picked were not reflective of relevant market rights that the attorneys involved did not have the degree of experience did not practice in the very unusual and rare  legal subject matter that was involved in this case but were more general lawyers which the there for do not command the same premium rights that specialists do  you know i have not tried before this court to parse the decisions the l j relied on did you bring those arguments up in your administrative appeal yes i think that  was the it wasn't the only issue presented to the benefits review board but yes it was presented and in particular once the a l j once the benefits review board excuse me had decided the u conducted it is certainly true that hale j g gave much more of an explanation of what she was doing and tabulated this large number of cases from the sub southern district of florida  although there's not really much description in her decision of which ones she found most relevant but she did set forth the extent to which some few of those decisions  d mentioned how much experience the attorney had which was one main feature but she did not examine as i say the degree of specialization of those attorneys we could have gone into those things we could have found cases that we thought were more relevant than the ones that she actually ended up relying on but we did not have that opportunity the procedures in the a p a that you're relying on it for a notice and an opportunity to address these decisions hinges on whether the l j took official notice of those decisions right yes yes so official notice is defined as you're treating something as conclusive fact is conclusively established how is what she did here treating these cases as conclusive when she looked at a bunch of them and then she still did her own analysis of this case and the attorneys involved in this case she certainly did the latter she made her an alice of the attorneys in this case and found deficiencies in their performance which i think the supreme court has pretty clearly told us in kenney a adjustments based on performance in the in the individual case are to be expected reserved for extraordinary circumstances she didn't cite and it was extraordinary you know rates are not based on after the fact evaluation of your performance in the individual case they're to such differences i don't think they're there but if they are then the grounds on which they hail j discredited the feed decisions that the barnett firm submitted also disqualify her reliance on the southern florida right setting now again i don't think that's true i don't know of any divergence between eleven stark it if you could see consider your argument that the kind of work that you were doing or the barnett from was doing was more sophisticated then there were if you take that argument into account yes well five she mentioned it yes but when she got to the determinative paragraphs of her order she didn't just use those as background those southern district of florida decisions as background she kept saying she said a couple of times and the respondents say repeatedly that she just used them as background or as context it's not true the rates that she awarded were based directly on what each of the paragraphs directing directed to each of the billing individuals just cited to the range in the southern district of florida decisions that's all she relied on so i don't restricted to or official notice being restricted to facts that are apparently uncontrovertible that's all very nice but that's not how it should what this was she wasn't taking its she was taking official notice of extra record evidence that was certainly not conclusive and she didn't pretend that it was conclusive that means it's not of a proper subject of official notice and any time you take it you rely on factual evidence that's outside the record your caking official notice of that evidence whether you taking it as conclusively establishing the facts or not now what she ended up doing was relying exclusively on those so yes she did effectively treat them as as conclusive on the question all right i think you can good morning your honors ma'am please the court i am monica markovitch appearing on behalf of service employees international inc in the insurance company of the state of pennsylvania with the court's permission i will share seven minutes of the respondents time with mr r and here it is he represents he represents floor and insurance company of the state of pennsylvania your honor the other employer with a i g combination all right i'm just curious why how your arguments would differ and we'll find you your honor i will be arguing why it was appropriate for judge judy to look to the southern district of florida for information about the market rate i will be arguing how the petitioner had an opportunity to address that information even without express permission from the judge and i will also be arguing why even of those two points were in error they were harmless error did you make a harmless error argument in your briefs we did not and we greatly appreciate the court's bring that to our attention because any error here was harmless within the longshore context regardless of the way that the court gets to the end as long as that and is supported by substantial evidence in the record any error along the way is harmless it's a different adequate evidence in support of his research request here petitioner did not put forward adequate evidence in support of his right request along the way there was a question as to how the agencies interpreted the evidence and in his hearing it was determined that the agency was wrong but even so kerry and hadn't put forth enough evidence here petitioner if we if we believe that the judge she was wrong with turning to the southern district of florida or that she was wrong in finding his evidence and adequate we still get to the end result which is that there is substantial evidence in the record to support the right awarded now what judge she did was she looked at christiansen this court's christianson case and she looked at the petitioners evidence to see if he had met his burden of proof she looked at where the community was when the rates should be determined based upon which was the two thousand and thirteen to two thousand and sixteen time period she looked at who was doing the work  petitioners information and what they were doing she applied that information within the christianson context and determine that the petitioner fell short and he fell short in several ways including the recency of the information and the lack of reference to other types of cases other types of fee shifting cases with respect to relevancy the court turned to more recent defense base act to citizens with respect to the market rate she looked to the petitioners requested community what she calls south florida she go to the southern district of florida and here she didn't just look to private information she looked to publicly available court cases of the prevailing rate which she determined to be similar in terms of the years of experience of the the number of different people within the firm involved and also these are different types of cases but of a similar skill and the what this court has said in several cases including christiansen is we have to describe as particularly  procedure for a nd how does curly after after she issued her decision is there a process where you can move for reconsideration yes your hon that is in twenty nine c f r eighteen point nine zero three there is a motion for reconsideration that's all that is available to all parties and your honor is brought up that the ten days seem short except this is workers compensation the deadlines are short and we all know experience practitioners know that once there's a decision in order of a judge which we cannot receive by email so we receive it before we even begin day one we all know that we have ten days to pay or there's a twenty percent penalty and we all know that we have ten days for a motion for reconsideration and that goes to the point of this petition or had an opportunity to say wait i would like to talk about this information and i would like to offer more i'm sorry so just assume as a hypothetical  the request for an opportunity to be heard may be made after official notice has been taken so given that that's have this procedure works does that mean they that it should of the request for an opportunity to be heard on that evidence should have been made in the context of a motion to reconsider i believe it could have been made in the context of a motion to reconsider i believe petitioner could have also called it some other type of motion i think that the petitioner should have acted  heard right eighteen to a one says that this judge could take official notice at any stage of the proceeding which means she's not precluded from taking official notice within her decision an order which if we consider that to be official disagreement among the judges but the problem i have with that is that it's a fact that she took notice not and she took it as can i view it as concludes that because she said i find that this is the prevailing market rate based on her review of those cases so that being said i was given that there is an opportunity to be heard provided that it's it's you can't really say that they didn't have an opportunity to be h it is official notice if these are facts and not law and i appreciate that someone grey here if it's official notice then she was right to take it when she did because she can do it at any stage of the proceeding and on request the petitioner should have had an opportunity to comment but he didn't request an opportunity and because he didn't request an opportunity we can simply reverse this saying he wasn't given an opportunity the judge did not have to explicitly give the petitioner an opportunity because it existed it existed in one thousand two hundred and one and it existed  i clear on this record is it correct that he that the burton from also did not raise it to the board if they make this argument to the board it was within the arguments raised to the board that they should be allowed notice yes i do think it's up and it's correct for everyone to decide today that they didn't does and saying we should have been given notice makes particularized arguments about those cases the forty cases and why that they were defective or should have been considered is that right that's correct they didn't offer information or evidence on those forty cases they simply said based on your knees in abbassi that this case should be reminded and the board disagreed because this is not  but the best framework to look at this case is for the petitioner to not ask for an opportunity to be heard on those cases and then complain about it today seems very inconsistent the petitioner had an opportunity to comment it was within the motion reconsideration period if the petitioner wanted an opportunity the petitioner should have asked for one at that point in time as opposed to appealing the case and i appreciate that my time is out and so i'll turn he asked a lot of questions so law and floor has its own interests as distinct to service employees international but in this matter our interests mirror each other when was looking towards the the number of cases for some guidance for a for of an overall i don't think you can just i don't think you can just say i'm not taking official notice and then go on and find to make findings of fact right so you can't i mean you can't say i'm not doing something that you didn't go on and actually do perhaps i'm reading i'm reading this this decision slightly differently because matter i think the court should have some perspective it was something that counsel for mr barnett brought up that he implied that the law for seeking fees and the assessment of did not follow the rules for establishing a market rate which is this court's standard and the th circuit stands alone within the united states for the market rate approach and it's described in by judge g and her decision that didn't elements of the market rate were not established by mr barnett she went on since there is a lot of evidence here in this case she went on to make a finding based upon the arguments made by coun and to looking to other sources which she was allowed to do under the case law of this circuit to come up with a conclusion there were reasons to depart from  perhaps the hourly rates that might generally be awarded i believe she said at one point judge judy said that she would award up to three hundred and seventy dollars an hour under all these award to mr barnett and was more and it turned out that the plaintiff was correct in judge g noted that why should mr barnett be awarded fees at the top of the range when at least in this case his performance was didn't warrant it and that's the kind of decision making that a judge has the discretion to make returning to the ultimate outcome the decision is issued yes a motion for reconsideration can be filed in a thirty five years that i've defended longer act and if the related defense space act cases we've seen plenty of them now there's a rush to get it done if you happen to represent the employer because we have ten days from the date of a decision to pay a claimant or encourage twenty percent penalty when it's and the plaintiff here of course is not is the is mr barnett  but the if mr barnett had followed the rules if he had established work to establish a market rate for south florida as he's always alleged south florida is the market then the cases that judge g mentioned would have been argued by mr barnett and so he is really not well placed to complain about being surprised by or not knowing about j to reach the outcome that she did if it was improper i don't believe it was but if it was improper yes it was harmless error and the judge was placed in the position of looking for the  the work pays for in south florida because of the failure of the plaintiff counsel to make provide the data necessary to establish a th circuit meet i think is incorrect because i think the court saddest some satisfactory evidence to support the rates claimed there was lots of evidence presented to support the facts claimed a l j simply did not apply and it convincing but that's not part of the initial burden it's a it's supposed to be an objective determination of whether this evidence is sufficient on its face not