good morning i'm ali williams i represent the appellant auto nation you are on as we have two appeals here today i am going to address the first appeal in terms of time primarily because a successful resolution of that appeal really disposes in part of the second one since it would really quire remained and i think the first appeal raises a clear distinct issue and then it is whether under the age discrimination act now no damages are awarded i think in that respect we have provided you with the authorities who they all have concluded for the same basic rationale that has existed in this area for years and that is now minal damages are a product of common law or compensatory damages which are not allowed under the pacific act it's clear that also under title seven they are currently a last out but when we go back and look at the cases that have been cited to this court they weren't damages that they do now and i think we also have two other federal provisions the f m l a where there has been specific rulings we have cited to yield on very identical damage provision there's an assumption in your question that without proving the damages portion of the ajak there is a violation many of the cases we cite deal with that because they disposed of such a case on summary judgment and so we do not accept the proposition that without the damage component there is a violation but to specifically answer your question the rationale is that congress has made a decision that there will be different damages for different violations of various civil rights that under title seven those damages are specific they are compensatory and once you find the liability there under common law damages you can find nominal damages that is a common law concept that has been incorporated into many of the civil rights act because they are now allowing in essence common law damages with a cap grant provisions that can be applied but in this particular act they go on to say your damages are limited to in essence loss of pay injunction or other equitable relief equitable really thunder certain circumstances where you don't have reinstatement allows for front pay but nothing would allow for compensatory damages which in all of the k is there discuss you need in order to get to the point of awarding nominal damages and in this case i think when you look at the cases that reject the claim that summary judgment basically saying that under the act the key is a violation based on age that results in a tangible loss in some type of benefit or job or position and without that there is no a claim that he was terminated because of his age that was rejected by the jury in fact there was really no evidence at trial to link up the terminations because the evidence showed that he  knowledged he was terminated because he failed to return to work after being on a disability leave and therefore the jury concluded that yes there was a hostile work environment as the judge instruct mental disability that he did not have nothing to do with he made no attempt to link up that with the alleged aids discrimination i know my colleagues brief tries to link up the two but there was no evidence at trial offered to link up the disability the need for the disability and the actual aleve that may have been enough but that wasn't the case in this case here the only thing we have i a hostile work environment claim found by the jury with absolutely no damages allowed by the act and the awarding of nominal day of a just under that situation let me understand the lawyer violated the initial argument on the appeal by my colleague which was dismissed that is the argument that started this appeal in terms of the plaintiff that's not before the court because there was just no nex the leave and he was able to come back to work he chose not to come back to work at that time he went to work somewhere else keep in mind that's why we don't have the front page issue from an equitable standpoint because he was making more money and that's why he did not come back  but the issue is you know that we never get to the violation of the act because there were no damages allowed and i would like to reserve my one minute and forty four seconds if i might my name is steve montoya i'm here on behalf of the apple e automation is confusing compensatory damages from nominal damages as judge mark tone of the district court concluded in writing specifically when rejecting automations argument in the proceedings below nominal damages are not compensatory damages compensatory damages of course reflect an injury nominal damages reflect of legal violation in which coincidently there is no injury automation is also made a claim to this court that i believe is inaccurate it says that other circuit courts have ruled that nominal damages are not available under the da there are no opinions published opinions cited in our donations papers before this court where that issue was even considered i don't nation cites to published opinions one by the second circuit haskell versus cayman one by the seventh circuit moscowitz vs trustees the issue of nominal damages ninety considered even though the issue of compensatory damages for pain and suffering is considered but is judged mark tone are observed below nominal damages are not compensatory damages the ninth circuit's a model jury instructions also clearly aware when judge march on resolve this issue against automation in the proceedings but whoa he cited mccormack on damages quote recognition of some breach of nominal damages or ordinarily awarded as quote recognition of some breach of duty not as a matter of recompense then he also cited the university of arizona professors daniel died obs treatise on remedies which indicates that nominal damages are awarded when there is no loss or no lo shown nominal damages are different than compensatory damages we're not contending that under the a d h a compensatory damages or a word of all that's not an issue before this court it's only the issue of nominal damages seem to be in agreement that come that emotional distress type damages are not available under the eighty a money damages are also compensatory damages though lost wages are back on donation also claim that before the civil rights act of one thousand nine hundred nominal damages awards were not awarded in title seven cases that's not true on page thirteen of our brief we cite three cases perceiving the civil rights would have this court conclude that even though you can obtain nominal damages in virtually every other type of claim you can under the a even though this court has specifically concluded association of mexican american educators versus california one of this court's opinions in the year two thousand that because the a d n title seven have a common purpose reading in the workplace of arbitrary discrimination that intra protection of one act applies with equal force to the other and the united states supreme court had before the ninth circuit also made the same observation in mck statutes first of all the fair labor standards act is not a civil rights statute it is not an anti discrimination statute second of all the statues are not similar liquidated damages congress is provided for under the rights act ever passed in the history of the united states and under section one thousand nine hundred three nominal damages have been awarded by the courts for decades why should there be any difference in reference to the eighty eight there shouldn't be because one of the purposes of the eighty eight is to deter if in fact you have a violation of the law as in this very case the jury concluded unanimously after a five of our claims and not all the plaintiffs one so that's sort of an exercise of its discretion it reduce the fee now judge wrong scent of course the plaintiffs a below the out believes now disagree with judge mark jones decision but because we didn't think that it via did it applied a clearly erroneous factual conclusion working to a clearly erroneous factual conclusion we didn't appeal it was within his discretion in fact the district the lodestar mark mark even though automation has appealed the award of attorney species it's its appeal is missing two things it doesn't object to the hourly rate which was two hundred seventy five dollars an hour no objection to the hourly o basically just says hey this is unreasonable which is a pure assertion that really doesn't sustain automations burden on appeal in my opinion and that was also the district court's opinion and the district court's opinion of course can only be reversed for an abuse of discretion and i don't without any objection to any specific time in trees and no objection to the hourly rate how can that be an abus discretion given the fact that the judge really did dramatically reduce the fee requested by the plaintiffs who prevailed in the proceedings below the problem is i have no idea what the starting point  hundred four hours of attorney time times two hundred seventy five bucks an hour so that would have been the lodestar and i think that was the district court's starting point and moreover judge rawlinson the point that iran are just made is completely absent from our donations papers and even though you can sustain on any grounds supported by the record you can't reverse on a ground that wasn't urged in the appellants opening brief i believe so we even even though we respect your honour's observations we believe that if that is if that was an issue it was not preserved  on appeal on this record if there are no questions i will think the court and sit down thank you thank you it please the court very quickly the cases that counsel cites primo nine hundred ninety one to support the concept of nominal damages they are award nominal damages without any discussion whatsoever of it being even an issue on appeal in other words in lieu of we were seeing a case entirely they simply says we think a nominal damages award would be appropriate no one  whatsoever and that includes all of the cases cited on page thirteen of their brief however if you look at other cases that they have cited in their brief pacifically bristow versus drake it's a seventh circuit case hundred ninety five they go through a detailed analysis of why post nine hundred ninety one nominal damages are allowed and before that they were in other words none of the cases they rely on have better analysis i'd like to address the judge robinson's question counsel is wrong you are in terms of us not raising the issue of the lone star it is raised in our second appeal and the problem is we don't know where the judge started because one we never got a full attorney's fees submission from the plaintiff's counsel he first cut down himself for those two plaintiffs because remember there were three other plaintiffs who did not prevail at all and then never consulted as required so we don't know where they started just start other than what the plaintiffs admit and with that my time i don't know that your argument in your brief that i'm your library you know i believe it's in the beginning of our brief in terms of the submission many in terms of the claim for attorneys fees in other words we never got a complete submission what we got is plaintiffs eighty four thousand dollars that mission never suggesting that that was all the money there had been time has been spent on the case in other words the submission should have included all of the fees