historical rates that are in the case law and totally disregarded the evidence that we submitted that seventy nine dollars clients in the east and just direct pay our airily rates every month how did you know that the district court disregarded that it didn't mention it all ended decision and as a result of that that decision should be reversed because it's directly contrary to this quotes decision and the e versus clinton county case that came out in two thousand and five which was exactly the same situation where the court totally just regarded other evidence only looked at the what was in the historical record and and didn't describe it in the court said you're not giving us enough of a record on appeal to look at this case and i told him right in the record so help me out whether you would but i work how many of those clients  disability cases and the vast majority of them are respect clients and they're paying seven hundred and twenty dollars an hour rates per month as they're being and those expenses they're being incurred case specific inquiry here looking at all the factors and one of the issues here is that in the eastern district for about the last ten years courts have continuously applied the same rate over and over again just relying on a previous decision without considering current rates and so we could trace those rates back actually to two thousand and two where they were say there was a decision saying that four hundred and fifty dollars is the highest rate of ailill in the eastern district and actually a magistrate scanlan in the eastern district in the case in two thousand and eighteen h b t versus port authority did an analysis of that and said that four hundred and fifty dollars an hour in in two thousand and two just by a flat inflation alone is the equivalent of six hundred and forty dollars in two thousand and eighteen and so on that basically the rates that are awarded in the eastern district and not even keeping up with inflation let alone what the market is actually charging and so we have very compelling evidence here that a lot of clients in the eastern district are willing to pay our rates and even though these are the same rates we charge to clients in the southern district a lot of clients in the east and just are willing to pay it and so that's the market rate in the eastern district also  then that's something that the court looks at inova let me take you back to that because part of your argument for why the legal standard is wrong here is the claim that you have all these clients paying the rate been a long time since i was on the eastern district bench but i don't recall any disability clients being able to pay in advance of securing some kind of judgment you're saying that you have disability right let me explain what our practice consists of so the arrest the contacts you have to exhaust the ministry of remedies before the insurance company before you file suit and so we represent a lot of clients at that stage of the process and at that stage of the process a lot of our clients pay us on an hourly basis and so the same clients or the clients that will eventually hire us in the litigation but we only will take the litigation on a contingency basis because of the amount of time involved but what's important here is that these individuals have hired our firm have paid us those rates they pay it on a monthly basis the morning please the court judge for background i represent the defense unlike defendants in this case i think your honour's hit on on the point here and what we have here is that you're supposed to look at the legal community right that's the formal and counsel's referring to his rights his rights his rights but that's not the legal community so yes he does charge more and maybe some and i agree it's not in the record exactly how many do pay hourly that's not to claim fees for work in litigation so he's referring to fee that he can even bring in this lawsuit you're not suggesting it's irrelevant it's it's not irrelevant to the extent that it shows what his fees are again it's not the legal community but when you look at the evidence that was presented in this why the district court i think dismissed it but he never he never alluded to it never told us that he looked at that evidence that's the legal claim that counsel is making well and i wish it was made clear in the briefing because it really isn't what he's talked about mostly his briefing is that he's asking you to apply a unified rate which is contrary to the law this issue which well preserved he did and now he comes to us and says the district court never considered the evidence that i put in on rates i chose bridge in the eastern district if the district court had said i consider this and  rejected he wouldn't have a cause of action boil it is it wouldn't have an appeal i think the district court did consider in how do we know that with but in the context the arguments that were made the argument that was really put forth to the district court was this unified ra with the southern and eastern districts and the court and what the evidence was and it applies to all of us here are it applies the issue on the unified rate which have to be rejected under president but also to what he's asking now he danced around also as your honor pointed out is this coming out of their pocket directly we don't know that that information wasn't provided it's being told to you now and i don't question him but we have to rely on the evidence that's before the court the other problem we have are these you know these are concerns the cases as counsel says so forget about what happened before the lawsuit was brought we need to look at because that's not part of a risk of the claim we need to look at what happened during the lawsuit and there's no evidence on that so we know that there's a contingency that's applied towards the fees but we don't know how the fees are calculated even for ms sullivan because he failed to include in the record the fee agreement and that's a really key piece of evidence so what the district court here and granted may be a little more explanation would have been better with the district court here did was it looked at the evidence before it and said i've got nothing really because all he is saying is this is what i charge the evidence from the other two attorneys from the eastern district of new york i am looking at paragraph five thousand and fifty one counsel's affidavit which is eight hundred and fifty seven that's where he says he has two hundred and fifty hour clients seventy nine of which are located in the eastern district of new york that's why i asked how many of them were risk clients because i didn't see an allegation that they were arrests the clients that he says the hourly rates charged to all our seven hundred and twenty dollars for mr rymer and then down from there all of our hourly rate clients regularly pay these rates on a monthly basis clients are billed monthly that's all i saw on it and you're saying that's inadequate to assume that even he is regularly paid seven hundred and twenty dollars an hour buyer missa clients for litigation because he doesn't differentiate between litigation and again i think that's an important factor here because litigation is what we're looking at is what he should be paid for during a lawsuit the administrative proceedings can't be claimed under the risk of statute right there only was a claim fees for fees the action so if he's being paid for something unrelated and i know it's it's the what leads up to the lawsuit it's still different because those fees aren't the fees that are claims here so we really need to know is he's complaining that the court used historical rates so what i did was i went online and i looked at all of the rates in every case of the don't coordinate boarding so if you're saying that this judge abused his discretion then every district court judge in the eastern district has as well and that's not the case because they are that is the highest award in two thousand and eighteen when that amount was awarded that was the highest rate in any type of case fee shifting case that any where the court said a litigant cannot overcome the presumption of the former all through mere proximity of the districts while there are a lot of reasons you know for example well the best two  that obviously there are financial factors economic factors there are you know to have an office in the southern district in manhattan is a lot more expensive than to be on long island or even in brooklyn office or doesn't have an but he practices in connecticut he practices so where do we do now do we expand it to those states as well the same rate in those states or districts now we have the other issue when he's asked you to do is not  right this is what is really interesting he's saying i want to unified but i want the southern district rate to be that unified rate give me the highest possible right so the next case is going to say in connecticut and by the way as we pointed out briefly a district of connecticut judge rejected this he's going to say let's just have a national rate and because he's saying the legal community is a risk a lawyer but there has to be a limit and the former rule that's the precedent here your honor if i can just finish that thought the precedent here is it's the district where the lawsuit is brought that's from polk that's from arbor hill and that's from simmons and there's an exception in the rare and unusual case but if he's asking for it in  what i was referring to was on page a fifty seven when we talk about clients who are actually paying our fees i don't know as i sit here today how many of them are risk that the vast majority of them are going to be a recess appointment because that's the nature of our practice but also in paragraph forty nine we also describe that approximately fifty percent of the firm's time is spent representing clients on a street airily basis so this is what would be an appropriate see in this case now you recovered one hundred and eighty eight thousand dollars judgment and you're looking originally you ask for a half a one million dollars in attorney question for the district court is what would a reasonable person be prepared to pay for representation in this case now you don't know the outcome at the start i understand that but presumably you have to tell your clients that you know the chances are that you'll recover this the chances are you will recover that and you're telling us that someone of modest means would pay seven hundred and twenty dollars an hour and other rates in a case such as this and that's that strikes me as very questionable me the district judge did award you far in excess of the judgment you recovered which is permissible you also recovered ongoing benefits from this so did you notice we did we actually recovered every cent she was entitled to and getting paid well not anymore but she got until the end was until age sixty five that's correct  only challenging him with respect to the hourly rate but stress counselors argument that the question is not just your hourly rate but the prevailing rate in the market well your honor we did submit other evidence of other attorneys that practice in the eastern district and what they charge and they charge rate similar to the rates that we charge such cited a variety of case that th either i'm sure the judge didn't reference those affidavits that we submitted either but he did reference a number of cases from two thousand and eighteen in which the rates were comparable to the one he awarded and in that sense i'm not sure how we identify an abuse of discretion if i may just address that the cases he cited neither one of which was in a receive disability case he cited one case that was in one thousand nine hundred and eighty three case and he also cited a case that was a delinquent contribution case which is very different than what we do but what was interesting and we do describe this in our reply brief was that the case that he cited it from two thousand and eighteen cited another prior case and that cited a prior case a prior case and we do the whole list all of those rates that he was citing were rates that were awarded in the eastern district in two thousand and eight during the last recession and so there has been no progression of the rates in the eastern district for the last ten years and so there's a problem in the eastern district right now where the quotes are a warning within that range and are never going above that not taking into any consideration about what people are actually charging and what people are actually paying and that's what we're hoping that the court will address because i have not got a case in the eastern district since the solon case and will not because i can't make money here this is not it's not going to be paying and so who's going to lose out on that people twenty five percent well i that's something in the courts discretion i didn't think that that was going to be a good issue on appeal and so i focused on the hourly rate which i thought there was a clear abuse of discretion because he didn't focus on on the evidence that was presented and i also thought that there is an issue here the simmons case is from two thousand and ten the world has changed so much in the last ten years and i think this court needs to re evaluate how it looks at these types of cases because the market system is very different now and the court hasn't addressed that since ten years ago it's a good place to start thank you b