good morning writer richard perle for the plaintiff helen i'd like to reserve two minutes for we have brief this issue the issue is presented here extensively and i would most like to use my eight or ten minutes to answer any questions the court  have i do have a few points i want to emphasize and i want to start with those and then well first i want to emphasize to the court that we thought long and hard about this appeal we recognize the great discretion the trial court must have in determining reasonable attorneys fees but there are very important legal principles presented by the district court's decision in this case that we feel were incorrectly decided or overlooked and the first of those is the issue of what of not obtaining all the relief you seek or losing related claims with the district court did was take the hensley formula which everyone has recognized and gone from the presumption that the lodestar is reasonable which is also an accepted principle to a presumption that the lodestar is unreasonable unless the plaintiff obtains complete vindication or total victory and we submit that that presumption that the lodestar is unreasonable unless you obtain complete indication and total victory is both inconsistent with the case law and more importantly inconsistent with the purposes of the civil rights of the shifting statutes the purposes of those statutes and i think this is well established is to ensure competent attorneys that if they indicate these important rights with substantial relief they will be fully compensated for their reasonable efforts just as they would be from a fee paying client law recognizes repeatedly that the mere fact that you were raised related claims or that you did not obtain all of the damages you sought does not make an otherwise reasonable fee per se unreasonable  ur client excuse me your client was dismissed i gather essentially is that right what was the term used by forgotten oh she wasn't dismissed she retained her employment throughout these to operate while the advance of sort of timeout was is she still abate is so this big oh no that was the bench was terminated a month after so she's now working she's been working the whole time to get one of the really one of the i guess  grounds for relief that you were seeking but did not achieve was a reversal of that and they insist that right not specifically no your honor there was no specific claim that the of bands was unconstitutional or illegal or unlawful or  it was probably more important to the discrimination claim than that than the hostile work environment claim but the district court expressed they found that most all of all most of the work on the advance issue aided the plaintiff in proving her but you were not  on the advance issue well there wasn't a separate abeyance issue and what the district court found expression i will tell you exactly what did you win and what did you lose we want a hostile work environment claim and three hundred thousand dollars in compensatory damages you lose we didn't win the gender discrimination claim or the economic damages that were sought as part of that claim and we didn't win an injunction mainly because the one of the junction go to the injunction really mainly went to cleaning up her record court of law was focusing on it the advancing to be very great concern and the equity action and the injunction was to raise that from the record as i understand it yes so the professionally she wouldn't have that the district court did not grant that injunction you know and so that all of a sudden becomes very important to the case as it's brief what is your position on that she got three hundred thousand dollars that's fine but there's still something on the record that she wanted to have a race which didn't happen well i have several positions and there's several facts that are important on that case for on that issue first of all the injunction only took up twenty six hours of time so denying the plaintiff compensation for five hundred thirty seven hours of time reasonably spent based on work that only took twenty six hours is not logical or consistent with the purposes second the plaintiff did not lose the abeyance issue as the district court found the district court found the jury could well have believed that the event was discriminatory but that there was no damages as a result of it so it's not like the plaintiff came in and said i want to show the disc the events is the law of unlawful  could tell us about the magistrate judges determination that the fees were too high apparently the magistrate judge based his germination upon other fees that he had awarded in what he perceived to be similar circumstances need he creates the highest from for seventy five to four twenty five years or so forth what is wrong from a legal point of view the magistrate judge relying upon his earlier work where he found what was a reasonable fee in a similar case that occurred about the same time from a position legal position can you do that some circuits that he can't i don't ask this court to issue a similar rule but in this case where there is overwhelming evidence the plaintiff's rates meet the applicable standard eight declarations that stated the planes were questioned rates are in line with those prevailing in the community the decisions that the district court relied on were never raised by the defendant they were only where they were only stated in the order they weren't raised at the argument they were raised by the defendant in its briefing they were only stated in order so the plaintiff had no opportunity to distinguish those cases or argue why they shouldn't apply and the decisions were in some cases a year or two old you have bring a motion for reconsideration no we did not the the rate determination reversed besides that but that was simply one more reason why that the district courts rate that determination was an abuse of discretion i think the main reason the rate the determination was an of discretion was the district court's focus on whether mr levy and his firm had actually charged the rates they were claiming and that simply is not the standard the district court seemed to make that a prerequisite for awarding  attorneys a prevailing market rate that they established that they charge something paying clients that rate that's not the standard set out in blom it's not the standard approved by this court in davis and it makes little s civil rights context where most civil rights lawyers and civil rights clients don't pay market rate pain market rates well isn't isn't the crux of your argument though that he just basically made it arbitrary determination in your view in this law twenty five percent on the on the first part of the partial success yeah i don't believe it was arbitrary but i do believe it was contrary to the legal standards so you don't you don't argue that it was arbitrary i think he thought about it and i think it's contrary the legal standards because there is a presumption that the lodestar is reasonable and i don't believe he considered that and i don't believe he considered the importance of the case or the statutory rights that were involved and i don't believe he considered other important factors that the case law has established and particularly i think and i want to make this point and i'm over my time on the settlement history because i think that shows more then what a lawyer says to a jury whether you have a hundred thousand actually a verdict for five hundred thousand the defendant the plaintiff offered to settle for much less than the ultimate team so when you're going to evaluate whether the plaintiff was successful i would submit that the settlement history is the most important factor consume the vast majority of the time and effort as recognized by the district court she and this was after she'd already lost on two claims on summary judgment she also did not receive whole categories of relief that she had sought court didn't say well she won on one out of four claims so only give her twenty five percent it didn't even say well she won on one of the two that went to trial so i'm just going to give her fifty percent let me ask you a question counsel had she won on any other of the claims hypothetically which you've gotten ten cents more in damages that would have been up to the district court or whatever you asked for just records you already kept out of both the three hundred thousand which you've gotten a dime more of damages regardless of if you got one on the other claims well if she hadn't had one on the disparate treatment klein she could have obtained the economic damages that she that she requested she requested it somewhere between excuse me seven hundred thousand and one point four million dollars in economic damages at the end of the closing argument mr least likely mentioned those economic damages and asked the jury to award every penny of that one point four million dollars and she did not receive that she could have received she could have received more than three hundred thousand and hospitals made inquiries to the air force asking if dr graham has had it had any adverse credit credentialing action the answer was no and that actually did happen and that's one of the reasons why i believe the jury found it's not to be an adverse employment decision for the abeyance as described in our briefly your honor is not an adverse credentialing activity that doesn't mean that it's like the police officer who was involved in the shooting and who  there was not adverse activity taken against her after the events however as described in our brief there were concerns raised and there were concerns that still existed after the abeyance and the reviews that related why we felt the case never should have even gone to trial because of the employment relationship however we lost on that and we didn't feel it so because of that unusual relationship it's not a situation where the air force is in possession of her personnel file so we don't know what is in the v a s personnel file we're getting relating to dr velez and it was new and it's not in the record not that i'm aware if you're on one of the itself do i have to make a reduction they just the district court just asked how much and that's just frankly not true the district court stated at page five eighty three of the excerpts of record quote did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making if the award the court then goes on for three pages discussing why it's choosing to make a reduction and then it gets the sentence quoted out of context by appellant that states the court must now decide what would action is warranted have the court instead of the words what reduction if any is warranted apparently that would have been acceptable to the to the appellant and in fact at the hearing on the attorney's spews motion the judge said quote i'm going to have to take a look at the road star issue and apply the burtons to see what adjustments if any are appropriate to the loud star and that's what the excerpts of record of page five forty  that rate which your response to that well this is a very different situation from the cases that are cited by appellant on that issue for example in the mendenhall case the attorneys that i'm only trying this client hundred  fifty dollars but i charge other clients who can afford it three hundred dollars that's not the situation here there was no admissible evidence that dr vallance attorneys charged any of their clients the four hundred seventy five dollars that was requested at the hearing and that that was the case but the judge found quite properly that that was not admissible evidence in addition the direct the court also noted that the declarations to permitted by the other attorneys saying this is a reasonable hourly rate is customary in this and in some instances this is what i charge the court couldn't tell from those whether those were the charges the rates that were actually charged as opposed to the chart the hourly rates that people say this is my hourly rate and then but i'm going to do you a favor and give you a just count  mr pearl they were decided within months of the hearing on the attorney's fees motion actually between mr pearl's declaration and the hearing and mr pearl had stated that he was a reasonable hourly rate was the same as mr le hundred seventy five dollars an hour in the district court in those two cases and found that mr pearl's reasonable hourly rate was four hundred dollars per hour which is actually less than the district court awarded to mr lee and mr yamauchi in this case over a couple years away from total electronic filing so it's not so easy for us to get those orders however there's nothing that says that a district very drastic no but it makes it hard for us to evaluate is my only point without without those orders on the record it's difficult for us to neither are appeals in addition there are i'm not aware of any case in the circuit or in my supreme court that says that a district court judge can't consider its own experience judge chen has had a lot of experience in dealing with the determinations based on that information as well as the information put into the record and there's nothing that says that that's inappropriate let me ask you on the twenty five percent decrease of the lodestar ok there's four claims are made and there's a difference i know under our law and the dang case and you know there's it makes a difference with the related or unrelated it seems to me that if i understand correctly unrelated then you can begin to cut down the mode store but if they're related you can get if that's a true understanding of the ninth circuit cases i'm concerned the magistrate judge determined that all four claims related because they involve the common his word involved a common core for acts that were based on related legal theories hasn't he by that finding indicated that he wrote usually decrease  related there's the separate the first prior step where you take out the things that are unrelated once you if you find that they're related then you deal with the last step of henslee to look at these results obtained and this court  in two thousand and three has agreed with that the when court stated that it's impossible to isolate the work on unsuccessful claims then i reduction for limited success is appropriate that is exactly the situation here this court has supported that fact that the plaintiff charged some other clients the rate he was seeking but that's not what the court held was the proper standard the court held that the rate determination should be based on the declarations of attorneys doing comparable work stating what  is the rate normally charged for that type of work that is the holding of the men in all cases and the davis case was even more specific because this exact argument came up i worked on the davis case there were two things two private civil rights attorneys who never charge clients more than a small amount the city in that case argued that that she kept the fees they are entitled to the district court said no they're entitled to the market prevailing market rates for complex litigation in this district and this court affirmed and that decision has never been questioned or overruled in terms of the declarations again mendenhall says you can't set too high a standard you can ask attorneys who are saying what is the market rate to bring in all their bills to prove that what they say is what they charge is what they actually charge all their clients that's simply too high a standard here we had eight attorneys saying that this is their market rate and this is the rate that they charge the paying clients or that they have been found reasonable by the courts and the trial and the district court simply disregard that the defend the defendant mention their own evidence in fact the survey that they presented as the district court found supported the plaintiff's rate it showed a range of rates that included mr levy and mr cheese rates and the district court expressed they found that because of their skill and experience they would be entitled to fees at the high end of that range y just regarded that evidence as well the allegations about my declaration are new i can certainly state to you that in my declaration i listed a number of cases in which the rate i was claiming was reasonable was found to be reasonable in terms of partial success henslee does not countenance a district court to simply say if you didn't get everything you obtain you ask for the district court has carte blanche to reduce the fee by some  consider percentage but it seems here counsel that if you were seeking a million whatever dollars and in economic damages and you received that all the time that was spent the lodestar all the time that was spent to obtain the result that was obtained the three hundred thousand dollars was reasonably spent on that claim and related claims i don't have a problem with that i'm going to ask you about the other claim which was the one that i mean i assume you would have been thrilled to death to have one that claim and lost the other one and the little i mean a million dollars is a lot more money than three hundred thousand right but let me go back to this specific case because the claim for economic damages in this case was what the courts have frequently recognized as a novel but credible claim dr velez never lost her employment she had no hard economic damages the argument was that because of these discriminatory actions she faced economic loss in the future if she went and applied for another job and the jury presumably found that that simply wasn't hadn't been proved she still continued working for nine more years after these actions with the air force or they are the v a the fact is though that simply asserting that claim doesn't mean that five hundred thirty seven hours of time or unreasonable and if plaintiff's counsellor told if you come to a jury and ask for more damages then the plaintiff ultimately receives you're going to get your fees slashed by that percentage or some significant percentage no matter how we simply you've worked no matter what the settlement positions were no matter how essential it was for you to go to trial no matter how substantial the results you paint are you're going to be creating conflicts between lawyers and clients and in the end for warding the purposes of the civil rights thesis shifting statutes that's why i submit the lodestar is presumed reasonable and there should be something more than simply that you didn't get what you asked the jury for to justify such a significant reduction and in fact he you did not obtain all the relief sought does not necessarily require a lodestar reduction alyson there kind of a policy issue here as well i mean you don't want to be encouraging plaintiffs to throw  into every complaint every possible conceivable cause of action even though they don't have the the essence of evidence to support it on the theory that doesn't make any difference anyway because even if i win just one little thing i'm going to get all my attorney's fees i would agree with that you honor and if the if the claim is not credible or if the plaintiff obtains only nominal damages or if in an inordinate amount of time is spent on a part of the case that wasn't helpful to anything else i would agree with you but in this case the trial court expressly found that the work done on the abeyance issue and the related reviews which are the core of the economic damages argument was useful and necessary to the hostage to the prevailing and in fact they didn't lose the advanced issue they never asked for a specific finding on the beams issue so in this case the fact that point if it served a claim for economic damages didn't add significantly to the amount of time spent a trial the district court found what the district court essentially did was they were going to penalize you for asking for more damages than you got no matter how much it affected your reasonable hours and that's cut in my view contrary to  believe there was but it was minimal as the district court found in the district court said the amount of time that would have been spent if if only a hostile work environment claimed had been brought the amount of time additional time that would have been saved was relatively minimal i can't remember the exact words but it did find that so that this wasn't a situation where most of the case was spent on the economic damages the economic damages flowed from  adverse employment actions that the the abeyance and the other reviews which were as the district court found useful in proving the hostile work environment claim and for the questions thank you very much