[00:00:01] Speaker 02:
Case number 15-7119 at L. Ashima Reed at L, Appellants vs. District of Columbia.

[00:00:07] Speaker 02:
Mr. Chirca for the Appellants, Mr. Love for the Appellee.

[00:01:03] Speaker 04:
Yes, go ahead.

[00:01:05] Speaker 04:
Good morning, I'm Douglas Tirca.

[00:01:06] Speaker 04:
I have represented the plaintiff appellants in the fees litigation in this case after Nicholas Ostrom represented them.

[00:01:13] Speaker 00:
Keep your voice up.

[00:01:14] Speaker 04:
Excuse me, Your Honor.

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I have represented the plaintiff appellants in the fees litigation in this case after Nicholas Ostrom represented them in the substantive IDDA litigation.

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As the court is aware, the appellants have identified several abuses of discretion on the part of the district court, including multiple instances of blatant disregard for record evidence.

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We think that many of those warrant reversal or vacation of the order.

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But I would like to start not where the brief begins, but with some of the issues that have potentially the broadest impact on cases outside of this one.

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The first of those is the district court's application of an hourly rate

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based on no evidence of actual market rates and a rate that stands directly contrary to the voluminous evidence that such a rate will not attract competent counsel.

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As we address in our brief, the district court, in making that decision, wrongly applied a legal standard and acted as if the question is, are there some attorneys who are willing to take some cases at this rate?

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In fact, as we know, the actual question is, is the rate applied in line with prevailing market rates?

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The district court made no attempt to identify prevailing market rates.

[00:02:32] Speaker 05:
But isn't that issue waived?

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You didn't object to the magistrate judges on that issue.

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Right?

[00:02:39] Speaker 04:
On the determination of prevailing rates?

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There's two ways.

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Can we just get the framework of this so we clear it?

[00:02:44] Speaker 05:
There's two ways.

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Rates have to be reasonable, right?

[00:02:47] Speaker 01:
Yes.

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One way to establish reasonable rates is to show that they're the rates that are charged in the market for that kind of case, right?

[00:02:55] Speaker 03:
Yes.

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The other way is you can try to qualify for laughing rates.

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In which case does the case have to be complex, right?

[00:03:02] Speaker 04:
Yes, sir.

[00:03:03] Speaker 05:
OK, so which of these two are you talking about?

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At the moment or in our brief?

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Let's make sure we're talking about which avenue you are arguing about in order to get higher rates.

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Are you talking about the first one I mentioned that is that you're seeking rates that prevail the market for IDE cases?

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As we stand here, we are arguing and in our briefs for both avenues.

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At the moment, I was actually addressing the district court's support of its rate.

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I'm happy to switch to our support of our rates.

[00:03:39] Speaker 05:
Why don't you do that?

[00:03:39] Speaker 05:
I think that would be better.

[00:03:41] Speaker 04:
I will start with the, again, one that has more broader implications for other cases, and that has to do with the applicability of the laughing matrix.

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and whether this case is complex enough.

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As Your Honor, as you pointed out, Ely left us in a situation where I think fee applicants under federal statutes that have not yet, or to which this Court has not yet applied Laffey, must establish sufficient complexity for the applicability of the Laffey Matrix.

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The court did not specify how that would be done.

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The court in Ely just left it as an open question of whether.

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But the court did say, do you agree that it's plaintiff's burden?

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Absolutely.

[00:04:20] Speaker 05:
OK, so it's plaintiff's burden to show that IDE cases are equally complex to cases that receive law fees, like employment discrimination, antitrust, things like that, right?

[00:04:38] Speaker 04:
I don't recall offhand whether the phrase is equal or sufficiently, but yes.

[00:04:42] Speaker 05:
Well, Julie, that's the principle, right?

[00:04:43] Speaker 04:
Yes.

[00:04:45] Speaker 04:
Right.

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And we have done that with multiple affidavits from lawyers who have practiced both in IDEA litigation and in areas of litigation to which this court has applied the laughing matrix.

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And those lawyers all said that IDEA litigation is at least as complex as litigation in those other areas.

[00:05:04] Speaker 05:
Well, did they explain it?

[00:05:07] Speaker 04:
They did absolutely explain it.

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Show me the best place in an affidavit where a lawyer explained it.

[00:05:13] Speaker 04:
May I present that on rebuttal rather than rifle to the record?

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Whatever you want.

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The lawyers consistently talked about the fact that IDA litigation requires the development of an expertise in many areas outside of the practice of law.

[00:05:29] Speaker 04:
Right.

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They also talked about the problems of the lack of traditional discovery.

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Usually the district argues that these cases are not as complex.

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And in fact, this is what the district court said.

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They are not as complex because they don't involve depositions and document productions and those sorts of things.

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In fact, the lawyers explained that they're more complex for that reason because IDEA practitioners are walking into cases having no idea what they're going to face.

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So they need to prepare for every possibility, entirely new defenses from the district, including defenses from expert witnesses who they've never heard from before.

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So they didn't, in fact, explain in detail why it is at least as complex as litigation in those other areas.

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And importantly, the district presented no contrary evidence to this.

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So we do not contend that the plaintiffs here presented a perfect case.

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I'm not sure what a perfect case regarding complexity would be.

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It's a difficult issue to establish.

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I want to just state what I think.

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You tell me if this is an accurate description of what your affidavits do, because they all basically say the same thing.

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One is that, and I'm not making a judgment on whether this is adequate or not.

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I want to see if you agree with what I think it is.

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Number one, that lawyers who handle administrative cases require non-legal expertise in areas of education, psychology, things like that, right?

[00:06:52] Speaker 05:
Yes.

[00:06:52] Speaker 05:
OK.

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And number two, that because there's no discovery,

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that lawyers have to be far more nimble, correct?

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Is that the point?

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Nimble is a word for it, but I would say that lawyers have to prepare for multiple cases at one time.

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They have to do what?

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They have to prepare for multiple cases at one time.

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You mean because they don't know what the defense will be?

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Yeah.

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So instead of relying on nimbleness, which would be a bit reckless, I would say, one has to prepare for any number of possible cases they may see walking in the door.

[00:07:25] Speaker 05:
OK.

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And although my own instinct is, you know,

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This court could make the judgment about whether that's equally complex.

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It really requires that you to make the case, right?

[00:07:40] Speaker 05:
That they're equally complex to school desegregation or antitrust or employment discrimination, right?

[00:07:48] Speaker 05:
Yes, Your Honor.

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That's the next part of your requirement.

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And you're going to, on rebuttal, you're going to read me the best portions of the affidavits that say that, right?

[00:08:00] Speaker 05:
I will, Your Honor.

[00:08:01] Speaker 04:
We also had an issue.

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But you agree.

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I've got the right framework, right?

[00:08:04] Speaker 05:
Yes, you're right.

[00:08:05] Speaker 05:
OK, fine.

[00:08:06] Speaker 05:
All right.

[00:08:06] Speaker 04:
I think those are the major points on the affidavit.

[00:08:07] Speaker 05:
Yeah, OK.

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I do want to point out that this record's argument that these cases are not sufficiently complex because they do not have luminous discovery.

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Were that true, then Ely would not have come down the way it did.

[00:08:21] Speaker 04:
Ely left open the question explicitly whether these cases were complex enough.

[00:08:24] Speaker 04:
Well, of course, the court in Ely knew that IDEA litigation does not involve complex discovery.

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We all know that.

[00:08:30] Speaker 05:
Well, no, the affidavits in Ely didn't say anything at all hardly.

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Your affidavit in Ely, as I recall, simply said,

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here's the matrix and here are my rates, right?

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You didn't say anything else.

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But we know from reading the statute that, and the court of course knew from reading the statute that IDEA litigation does not involve complex discovery.

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Furthermore, the district in Ely did argue exactly that point.

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They said these cases are not sufficiently complex because they do not involve voluminous discovery, et cetera.

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So the circuit court had that, this court had that argument before it, and

[00:09:04] Speaker 04:
were that the case, that that were the necessary kind of complexity, as a district court argues, then this court would have simply said, that's it, IDEA litigation is not sufficiently complex, no matrix can apply.

[00:09:15] Speaker 05:
What do you think complexity means in this standard?

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What do you think it means?

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I believe that it means requiring a great deal of

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learning and preparation over time to acquire an expertise.

[00:09:37] Speaker 04:
Well, that's expertise.

[00:09:40] Speaker 05:
That's not complexity.

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It says complexity.

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But only a complex area of study or law will require a lot of time to achieve competency.

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If it is a very simple case, then any law school graduate can handle it.

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If it is a complex area of litigation... But you can have an actual very simple case that has difficult legal issues.

[00:10:05] Speaker 05:
That doesn't make the case complicated, does it?

[00:10:09] Speaker 04:
Well, I think in that question... I'm just asking.

[00:10:11] Speaker 05:
I don't know.

[00:10:11] Speaker 05:
No, no.

[00:10:12] Speaker 05:
As the district court said, no one's ever defined this, right?

[00:10:15] Speaker 05:
As far as I know, no one has.

[00:10:16] Speaker 05:
Yeah.

[00:10:17] Speaker 05:
Do you think I'd be accurate to say, I mean, we've all written a lot of opinions involving cases that are entitled to laffy rights, like employment discrimination and antitrust and...

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And actually, I've litigated a lot of school cases.

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So if you were asking me what it is, I would say those cases are complex because they involve complicated legal issues.

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They involve complicated and difficult legal issues.

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They involve complicated and sophisticated factual questions.

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And they're procedurally complex.

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Does that sound right to you?

[00:10:56] Speaker 04:
I think those are all possible components of complexity.

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But this court did not recommend an analysis of the complexity of individual cases.

[00:11:06] Speaker 05:
Correct.

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We're not supposed to look at an individual case.

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We're supposed to look at the category of cases.

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Correct?

[00:11:12] Speaker 04:
Correct.

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That's my understanding.

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On that question of complexity, our evidence was not limited to the affidavits.

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We also gave unquestionably objective evidence of what happens with competent firms when they enter the field of IDEA litigation.

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We presented these cases.

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We showed the billing records of well-respected firms who spent from 8 to 60 times as much time as Mr. Oshawa spent on these cases trying to get their own IDA litigation done.

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And so, the minimum number, that number of 8 times,

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I would say, in keeping with my definition of complexity that I offered before, I would say that if a competent, otherwise competent firm upon entering this field of litigation has to spend eight times as much time to master it as Mr. Ostrom did, that indicates that there's a complexity here that will take some time for that firm to learn.

[00:12:16] Speaker 02:
But it is some evidence.

[00:12:19] Speaker 04:
And again, we offer the only evidence in this case.

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Now, the district, when we presented that evidence of those comparison cases, the district did not question our analysis.

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So we could have a case that was, for some reason, exceptionally time consuming, but was in a simple area of litigation.

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But in fact, what we did when we looked at these cases, we compared the issues at hand.

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We said, these are cases that are comparable to our cases.

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Nonetheless, they spend all of this time on it, which seems to indicate to us that it requires, that it has a complexity that requires some study by newer firms.

[00:12:50] Speaker 00:
I do want to point out... Can you switch, I mean, switch for a minute from the complex, whether this is complex litigation.

[00:12:56] Speaker 00:
I mean, your other argument, I think, is that the district court was wrong in finding that the prevailing market rate was...

[00:13:04] Speaker 00:
what the district court relied upon, and I'm not sure I understand that.

[00:13:08] Speaker 00:
The district court was looking at a lot of cases in which the rate that you received is the rate that's been applied fairly consistently.

[00:13:17] Speaker 00:
In response, what you offered was very modest, focused more on the complex question than on the prevailing market rate, right?

[00:13:26] Speaker 04:
That's one of our multiple arguments we also address.

[00:13:29] Speaker 00:
But I mean, what I'm suggesting is that seems to me kind of a frail argument that on prevailing market rate, the prevailing market rate appears to be what the district court said, or at least the district court seems to have a strong foundation for that conclusion based on

[00:13:46] Speaker 00:
cited litigation, right?

[00:13:47] Speaker 04:
Especially I disagree and for two reasons.

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One, the district court in this case, so the district does make the argument that I think you have pointed out Judge Edwards.

[00:13:55] Speaker 04:
The district court did not in fact say there's a pile of cases here that must be the market rate.

[00:14:00] Speaker 04:
The district court said something a little bit more complicated, which was these awards have been made in the past and there are still attorneys standing taking these cases.

[00:14:09] Speaker 04:
Therefore, this must be sufficient to attract counsel.

[00:14:12] Speaker 00:
No, that's a different question.

[00:14:14] Speaker 00:
I think you're conflating them.

[00:14:15] Speaker 00:
The district court said there are these cases, so that seems to be the prevailing market rate, to which you say, you seem to be saying, and I think it's a perfectly reasonable argument, yeah, it may or may not be true, but we can revisit this.

[00:14:29] Speaker 00:
if we can show you that it's not enough to attract attorneys.

[00:14:33] Speaker 00:
And then the district court responded to that.

[00:14:36] Speaker 00:
I'm trying to disaggregate this.

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There's complex, there's prevailing market rate, there's whether it's enough to attract attorneys.

[00:14:42] Speaker 00:
Now, we've gone through the complexity question.

[00:14:45] Speaker 00:
Prevailing market rate, it seems to me the district court's correct on it.

[00:14:49] Speaker 00:
I don't see you really refuting it in your evidence, but I do see you saying

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essentially, maybe so, but it won't attract anybody, and the district court responded to that.

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Now, have I got that right?

[00:15:00] Speaker 04:
Respectfully, Judge Edwards, I disagree that that was the district court's analysis.

[00:15:03] Speaker 04:
I think the district court, in fact, made the other analysis that I presented.

[00:15:07] Speaker 04:
However, the district has, without question, made the argument that you have talked about.

[00:15:11] Speaker 00:
So you said the district court did not rely on the fact that cases have

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use this rate?

[00:15:17] Speaker 04:
I don't think the district court relied directly upon that, and in fact, the district court indicated much of the opposite.

[00:15:23] Speaker 04:
On page 473 of the record, the district court said, it was addressing our evidence, the district court said that it was not appropriate to rely on just some assortment of cases that had awarded the same rate, that it wasn't going to take that approach.

[00:15:40] Speaker 04:
Instead, it lays out its approach on pages 475 to 476,

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And what it says is many cases have...

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ordered rates like these.

[00:15:49] Speaker 04:
No, that's what I thought.

[00:15:51] Speaker 04:
But it's the second step.

[00:15:52] Speaker 00:
It is the second step, Your Honor.

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Many cases have ordered rates like these, and there are still attorneys litigating these cases.

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Therefore, these rates must be sufficient to attract counsel.

[00:16:01] Speaker 04:
That's my read of the district court's order.

[00:16:02] Speaker 04:
However, I do think this is an important issue to address, and I'm happy to address it, particularly with this panel.

[00:16:07] Speaker 04:
This question of whether prior, and I'll just note that I'm well over time, but I do what I have to do.

[00:16:13] Speaker 05:
Go ahead.

[00:16:14] Speaker 04:
Well, you keep going until we're done.

[00:16:17] Speaker 04:
This argument that the district has made in all of these cases, and some courts have also ruled in this way, that prior district court decisions on fees serve as evidence in a present case.

[00:16:31] Speaker 04:
The question there, though, is were those decisions themselves based on market evidence?

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And that's a decision that you never answered because you never got to the quality of the district's evidence because it happened.

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The plaintiff had not presented sufficient evidence.

[00:16:46] Speaker 00:
Because if you have enough of those cases, the answer is self-evident.

[00:16:50] Speaker 00:
That is the market.

[00:16:52] Speaker 00:
I mean, that it's an adequate rate.

[00:16:55] Speaker 00:
It means that that is what is happening in the market.

[00:16:58] Speaker 00:
If time after time after time, this is what appears in the district court and this is what

[00:17:02] Speaker 04:
These court judges are not members of the market.

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They are not negotiating with lawyers over how they rate.

[00:17:07] Speaker 05:
Aren't there two... The market rate... What do we mean by the market rate?

[00:17:12] Speaker 05:
The market rate is the amount lawyers charge their clients that they can get in the open market for these cases, correct?

[00:17:17] Speaker 05:
Correct.

[00:17:18] Speaker 05:
In other words, if you have a paying, if you lawyers who bring these cases, presumably you have paying clients and clients who can't afford to pay your fees.

[00:17:26] Speaker 05:
So the market rate is what are you charging, what are clients who pay their own fees paying?

[00:17:33] Speaker 05:
That's the market rate, right?

[00:17:34] Speaker 00:
Yes, and that's exactly what we established with our... See, that's an interesting question to me, and I'm not sure that's right.

[00:17:43] Speaker 00:
When an attorney takes a case and knows it may involve litigation,

[00:17:47] Speaker 00:
One of the things I think we used to consider is if it goes to litigation, we have to seek fees, which most of them want to do.

[00:17:54] Speaker 00:
We understand what the cap might be, and we're still going to take the case.

[00:17:58] Speaker 00:
That's part of your market rate consideration.

[00:18:00] Speaker 00:
It's not just what I say to the client, here's what I'd like to charge.

[00:18:04] Speaker 00:
Are you willing to pay that?

[00:18:05] Speaker 00:
The person says yes.

[00:18:07] Speaker 00:
But if it goes to goes to court and you have to ask for fees, so you would have to show that in all those, not at all, in some of those cases, the attorney client conversation is we go to court, I'm only going to be able to get 75%.

[00:18:21] Speaker 00:
You have to make it up.

[00:18:23] Speaker 00:
Is that what your evidence shows?

[00:18:25] Speaker 04:
Our evidence shows that there are firms that have paying clients who are committed to pay those rates and have paid those rates, independent of whether there was any fee award whatsoever.

[00:18:34] Speaker 04:
And this court has in fact addressed this question of whether prior district court decisions can be used as direct evidence of market rates in Concerned Veterans, which I believe is the first case in which this court ever mentioned using decisions as evidence.

[00:18:52] Speaker 04:
Perhaps the court was using the term very loosely, but whether it was or not, the court then put a footnote out, as we cite in our brief, that very explicitly cautioned against exactly what the district argues that the court do here.

[00:19:03] Speaker 04:
It said, do not present, and wonder bus was the term, do not present a pile of cases that go your way unless those cases are themselves based on market evidence.

[00:19:11] Speaker 04:
And what we have here from the district and arguably from the district court is a house of cards

[00:19:16] Speaker 04:
None of which is based on any market evidence, all of which trace back to a single case roots and one sentence from that single case.

[00:19:23] Speaker 04:
And the district, we have challenged them repeatedly, the district cannot point to a single one of those cases that actually looked at real market evidence.

[00:19:31] Speaker 05:
Mr. Turcotte, what, the DCPS says that this part of your argument is forfeit because you didn't object to the magistrate, you didn't make this argument, you didn't argue the magistrate judge had ignored this evidence.

[00:19:46] Speaker 05:
What's your right?

[00:19:47] Speaker 05:
That's their argument, isn't it?

[00:19:49] Speaker 05:
My understanding is that they have argued that... Isn't that what DCPS is arguing here?

[00:19:53] Speaker 04:
My understanding of their waiver argument, their only waiver argument, is regarding the neighbor's affidavit and regarding the evidence of a prior affidavit of mine in the Yieldy case.

[00:20:08] Speaker 05:
Yeah, your affidavit and neighbor's affidavit.

[00:20:10] Speaker 05:
Isn't that your argument here?

[00:20:12] Speaker 04:
No, no, my argument is twofold.

[00:20:14] Speaker 04:
One, we have those affidavits that are direct market evidence.

[00:20:16] Speaker 04:
Two, we have the complexity evidence that justifies the interest.

[00:20:19] Speaker 05:
Well, forget the complexity evidence.

[00:20:20] Speaker 05:
Nobody's arguing that's waived.

[00:20:22] Speaker 05:
I was only talking about the prevailing rate evidence.

[00:20:25] Speaker 05:
And that evidence is in your affidavit and the neighbor's affidavit, right?

[00:20:30] Speaker 04:
My advocacy was cited neatly, correct?

[00:20:32] Speaker 05:
Yeah.

[00:20:33] Speaker 05:
And the district says you didn't object to the magistrate judge's decision on that grounds, and therefore it's waived.

[00:20:43] Speaker 04:
Well, they do argue that, and there's multiple problems with that.

[00:20:46] Speaker 05:
First off... Well, that's why I asked you the question.

[00:20:47] Speaker 05:
Because, you know, you... What's your response?

[00:20:59] Speaker 04:
Well, first, the district cites a case in which the fee applicant, or excuse me, the plaintiff had filed no objections whatsoever.

[00:21:06] Speaker 04:
Here, we clearly filed objections.

[00:21:08] Speaker 04:
And we very exclusively, on the second page of the objections, stated that our objection was to the hourly rate employed by the magistrate judge.

[00:21:15] Speaker 05:
Yeah, but that was about the complexity.

[00:21:18] Speaker 04:
Well, it was about the hourly rate overall.

[00:21:19] Speaker 05:
It was about the complexity issue.

[00:21:21] Speaker 05:
And we all agree there's two different bases here for getting rates.

[00:21:25] Speaker 05:
And that was your objection there.

[00:21:27] Speaker 05:
We also.

[00:21:27] Speaker 05:
You said, in fact, you don't even object.

[00:21:30] Speaker 05:
Your only response to the forfeiture argument, as I read it, is that your reference to the summary judgment papers were enough to preserve the issue for appeal, right?

[00:21:41] Speaker 05:
That's what you say.

[00:21:43] Speaker 04:
We think it is.

[00:21:44] Speaker 04:
And additionally, I'll note that the ministry just.

[00:21:47] Speaker 05:
You say the U.S.

[00:21:50] Speaker 05:
court consider all the arguments in their motion for summary judgment, but under the rules, that can't be enough, right?

[00:21:57] Speaker 05:
Because, you know, Section 631B1, district court must review de novo only those portions of the magistrate that are objected to.

[00:22:09] Speaker 05:
In other words, a general objection isn't enough.

[00:22:12] Speaker 04:
But we objected to the determination of the rate.

[00:22:14] Speaker 04:
But that was on complexity grounds.

[00:22:17] Speaker 04:
And if I may, Your Honor, the district court's total overlooking of the affidavits, that was a mistake made first by the district court.

[00:22:26] Speaker 04:
The magistrate judge had, in fact, not entirely overlooked the affidavits.

[00:22:30] Speaker 04:
The magistrate judge had looked at them, said they weren't enough.

[00:22:34] Speaker 04:
But the district court did not look at them at all.

[00:22:36] Speaker 04:
And that is the basis of our appeal.

[00:22:39] Speaker 01:
All right.

[00:22:40] Speaker 01:
You got any other questions?

[00:22:40] Speaker 05:
No.

[00:22:40] Speaker 05:
No.

[00:22:40] Speaker 05:
OK, thank you.

[00:22:42] Speaker 05:
Thank you.

[00:22:43] Speaker 05:
Mr. Love?

[00:22:52] Speaker 03:
This is an abuse of discretion case, and we would submit that the district court didn't use its discretion in finding that the plaintiffs had failed to submit sufficient evidence to establish that the rates they requested are in line with the rates prevailing in the district.

[00:23:08] Speaker 02:
Before you get into the general, let's get into the general party's argument.

[00:23:11] Speaker 02:
The last, I felt it was between Judge Tatel and the council, was concerning the breadth of your waiver.

[00:23:19] Speaker 02:
What do you, your waiver argument

[00:23:24] Speaker 03:
The market rate information.

[00:23:31] Speaker 03:
I agree with Judge Tatel.

[00:23:33] Speaker 05:
Well wait, I just asked him a question.

[00:23:35] Speaker 05:
I haven't said what my position is.

[00:23:37] Speaker 05:
I just asked him a question about your argument about waiver.

[00:23:40] Speaker 03:
Yeah, and Judge Tatel... So I don't know if you're right or wrong.

[00:23:43] Speaker 03:
No, I wasn't suggesting that.

[00:23:45] Speaker 03:
I thought you had identified the market rate issue as having been forfeited, and that was our question.

[00:23:52] Speaker 05:
But Mr. Turka said in response that what he's objecting to is the district court's failure to consider those.

[00:23:59] Speaker 03:
I'm sorry.

[00:24:00] Speaker 05:
He's objecting to the district court's failure to consider the market rate evidence.

[00:24:06] Speaker 03:
I understand that, but he didn't raise that in his papers before the district court is our position.

[00:24:13] Speaker 02:
And what point did he fail to raise it when he should have raised it to avoid forfeiture?

[00:24:19] Speaker 03:
He should have raised it in his objections to the magistrate judges.

[00:24:24] Speaker 02:
But his position is that the objective, that to which the objective did not exist at that point, that the magistrate judge had in fact considered the evidence, but the district court did not.

[00:24:35] Speaker 02:
Now if that's the case, then he could not have raised it before the district court had issued his opinion.

[00:24:41] Speaker 03:
Well, but respectfully, the district court didn't address it because he didn't raise it, is our position.

[00:24:49] Speaker 05:
Oh, your point is he didn't raise it in the district court?

[00:24:52] Speaker 03:
He didn't raise it in the district court and his objections to the district judge of the magistrate's report recommendation.

[00:24:57] Speaker 02:
But if he had berated that the magistrate judge had not committed that particular error, then he could not have raised it in his objection.

[00:25:05] Speaker 03:
Well, I heard the opposite.

[00:25:07] Speaker 03:
I heard that the magistrate judge did make that

[00:25:11] Speaker 03:
that they did object to the magistrate judge's failure to address that or the way the magistrate judge addressed that.

[00:25:19] Speaker 03:
And that the point he's raising here is the district court's failure to address the market rate evidence that they submitted.

[00:25:31] Speaker 03:
The district court didn't address it at our contention because it wasn't raised in his objections to the district court.

[00:25:42] Speaker 05:
Is it your position that IDE cases are not complex or that the plaintiffs here have simply not proven it?

[00:26:00] Speaker 00:
Wait, I want to make sure.

[00:26:04] Speaker 00:
I'm saying he didn't raise it.

[00:26:05] Speaker 00:
The record says at JA 395, the magistrate judge recommends the application of hourly rates for most of the work equal to 75% of the rates and blah, blah, blah.

[00:26:16] Speaker 00:
Those rates are well below reasonable rates because they do not accurately reflect prevailing rates because they are based on unsupported inflation adjustment method and because they do not reflect the evidence of market rates presented in sworn statements.

[00:26:32] Speaker 00:
So it was raised.

[00:26:34] Speaker 00:
What are you talking about?

[00:26:35] Speaker 00:
It's in the introduction to their objections.

[00:26:43] Speaker 00:
Well, I'm reading it.

[00:26:44] Speaker 03:
So I understand how you can say it wasn't raised.

[00:26:48] Speaker 03:
But they raised various pieces.

[00:26:51] Speaker 00:
No, no, no.

[00:26:52] Speaker 00:
Let's stick with this.

[00:26:52] Speaker 00:
They're saying the prevailing market rate is wrong.

[00:26:55] Speaker 00:
It doesn't address affidavits that were presented.

[00:26:57] Speaker 00:
The magistrates got it wrong.

[00:27:01] Speaker 00:
And their argument is the district court didn't address it.

[00:27:04] Speaker 03:
uh... i think that they have what their argument is if you go on you know none of the talks about the statements that they submitted which uh... uh... indicated that and uh... uh... firm had charged and received from non-contingency faith playing clients the enhanced rat laughing none of that was the other day what are the affidavits well they're all the affidavits are going to the complexity issue

[00:27:34] Speaker 03:
I mean they submitted along with this these objections of

[00:27:41] Speaker 03:
five sworn statements concerning the complexity of ideal litigation and the fact that it was sufficient.

[00:27:49] Speaker 00:
I'll ask them on rebuttal because they certainly make the objection in very clear language and they say what they think supports it.

[00:27:58] Speaker 03:
And then Judge Edwards also, if you look at their reply brief, what they indicate in response to the argument that the district raised, they rely on page 394

[00:28:09] Speaker 03:
their sentence that says the plaintiff asked this court to consider all of the arguments and evidence presented in their motion for summary judgment and their reply opposition incorporated by reference.

[00:28:19] Speaker 03:
That's the argument that they say preserve the argument and we submit that's not sufficient.

[00:28:29] Speaker 03:
So even in their reply they don't rely on

[00:28:35] Speaker 05:
I'm sorry.

[00:28:36] Speaker 05:
So that's OK.

[00:28:37] Speaker 05:
That's a good question.

[00:28:38] Speaker 05:
What's the answer to my question?

[00:28:39] Speaker 05:
Is it the city's position that IDE cases are not complex, or is it your position that plaintiffs here haven't demonstrated?

[00:28:48] Speaker 03:
Well, the primary position is the district court did not abuse its discretion in finding that they were not sufficiently complex to warrant the rates that were requested here.

[00:28:59] Speaker 03:
But the plaintiff is wrong when he says the district submitted no

[00:29:07] Speaker 03:
the district submitted numerous cases where court after court has found... Cases?

[00:29:13] Speaker 00:
Cases.

[00:29:13] Speaker 00:
That doesn't help you.

[00:29:14] Speaker 00:
That's not the market.

[00:29:15] Speaker 00:
That's how we're talking about it.

[00:29:16] Speaker 03:
No, no, I'm not talking about the market.

[00:29:18] Speaker 03:
I'm talking about whether or not there was any... We have to make a judgment.

[00:29:22] Speaker 05:
Our issue here in this appellate court

[00:29:27] Speaker 05:
Is do agree with me.

[00:29:30] Speaker 05:
The question is, did the district court abuse its discretion in concluding that idea cases are not sufficiently complex for laughing rights?

[00:29:40] Speaker 05:
That's the question, right?

[00:29:42] Speaker 05:
Okay, so they have evidence.

[00:29:45] Speaker 05:
which I want to ask you about in a minute, that it is.

[00:29:49] Speaker 05:
That's what they say in their affidavits.

[00:29:51] Speaker 05:
You just responded by saying, and they say that evidence is uncontested.

[00:29:56] Speaker 05:
You just responded to Judge Edwards by saying, well, we cited cases, right?

[00:30:04] Speaker 05:
But those courts may be right, they may be wrong.

[00:30:07] Speaker 05:
That's not evidence of complexity.

[00:30:10] Speaker 05:
Right?

[00:30:11] Speaker 05:
Here, let me ask you this way, very precisely.

[00:30:15] Speaker 05:
One of their major arguments in all their affidavits is that IDEA lawyers require a great deal of non-legal expertise.

[00:30:23] Speaker 05:
Right?

[00:30:24] Speaker ?:
Right.

[00:30:24] Speaker 05:
Psychology, education, language, all kinds of things.

[00:30:28] Speaker 05:
Right?

[00:30:28] Speaker 05:
Do you have an affidavit challenging that?

[00:30:32] Speaker 03:
No, we didn't have any affidavits that were submitted in an argument.

[00:30:38] Speaker 03:
We identified cases where courts have found it is not generally complex.

[00:30:43] Speaker 03:
We also identified the Title VII laughing, which is at the base of these matrices, and the complexity of that case, that it was a litigated case that resulted in a lengthy trial.

[00:30:58] Speaker 03:
It was a class, I believe a class,

[00:31:03] Speaker 03:
which identified the evidence.

[00:31:07] Speaker 05:
There are lots of IDE cases that meet that standard, some of which have been decided by this Court.

[00:31:13] Speaker 03:
Well, I think what the Court here found, and I think reasonably so, that structurally IDEA is different than Title VII or antitrust litigation.

[00:31:23] Speaker 05:
I thought you just found that plaintiffs hadn't demonstrated that it was equally complex.

[00:31:28] Speaker 05:
Am I wrong about that?

[00:31:30] Speaker 03:
I don't think the court abused its discretion in finding that it was.

[00:31:39] Speaker 03:
from these litigation because, you know, idea is structured through very defined procedures.

[00:31:48] Speaker 03:
It's an informal proceeding before an administrative law judge without the rules of evidence being applicable.

[00:31:57] Speaker 03:
There's no motions, practice.

[00:31:58] Speaker 05:
Do you think we should, do you think we're, are we looking at this question

[00:32:04] Speaker 05:
Are we looking at the administrative process separately from the litigating process?

[00:32:07] Speaker 05:
Remember, we have to decide, the issue is, are IDE cases as a class, not this case, but IDE litigation, is it sufficiently complex to get laffy rates?

[00:32:20] Speaker 05:
And you're focusing just on the administrative process.

[00:32:23] Speaker 03:
Well, that was what the court here ruled.

[00:32:26] Speaker 03:
The court here ruled on cases involving administrative cases before a hearing officer in which the

[00:32:38] Speaker 03:
plaintiff prevails and thereafter files a district court action seeking fees.

[00:32:44] Speaker 03:
That was the class of cases which the court was reviewing here and found were qualitatively dissimilar.

[00:32:50] Speaker 05:
What do you think about my question generally about whether we can really separate administrative proceedings from litigation?

[00:33:00] Speaker 05:
What do you think about that?

[00:33:01] Speaker 03:
Well, I think you can distinguish them.

[00:33:03] Speaker 03:
I think the court properly did so here.

[00:33:05] Speaker 05:
You mean, so it's possible that you could get, it could get lousy rates for the litigation, but not for the administrative proceedings leading up to it?

[00:33:14] Speaker 05:
Because they're not complex?

[00:33:15] Speaker 03:
Well, I think, generally, the same structural differences exist.

[00:33:23] Speaker 03:
in cases that are litigated before the district court because generally, not always, generally there are record review.

[00:33:36] Speaker 03:
So the same structural dissimilarities that exist on the administrative level would exist on the district court level in the situation where the actual hearing officer's finding was disputed.

[00:33:51] Speaker 03:
Generally speaking, most of them that I'm familiar with are a record review where not additional evidence has been submitted.

[00:33:59] Speaker 03:
Certainly there's been no discovery, there's been no motions practiced.

[00:34:04] Speaker 03:
So that I think it would, I think you could

[00:34:06] Speaker 03:
could, for those reasons, find it was equally applicable, even in the situation where the hearing officer's decision was litigated in district court.

[00:34:19] Speaker 05:
Are you done with that subject?

[00:34:20] Speaker 05:
I want to change the subject.

[00:34:21] Speaker 05:
Yeah.

[00:34:21] Speaker 05:
OK, I just have a quick question for you about the settlement conferences.

[00:34:24] Speaker 01:
Yeah, I have that.

[00:34:26] Speaker 05:
The Ostrom Declaration says that he said when he was invited to meet, he said there was no

[00:34:32] Speaker 05:
IEP team present, and the law requires that there be an IEP team present.

[00:34:38] Speaker 05:
There was no one who indicated any specific knowledge of the facts of the complaint, and the law requires that.

[00:34:45] Speaker 05:
And he says, actually to the contrary, he said the person who was here didn't know anything about it.

[00:34:50] Speaker 05:
And then he says there was nobody from DCPS who had decision-making authority.

[00:34:55] Speaker 05:
In fact, he says,

[00:34:58] Speaker 05:
every time a proposal was made, he had to respond.

[00:35:00] Speaker 05:
So why doesn't that affidavit, which is uncontested, shift the burden sufficiently indicate – isn't that sufficient, at least to make a Priemann-Fascher case, that this was not a statutory resolution meeting?

[00:35:15] Speaker 00:
We certainly found that nearly.

[00:35:19] Speaker 03:
Right.

[00:35:23] Speaker 05:
So do you agree with me?

[00:35:25] Speaker 05:
Are you conceding this point?

[00:35:30] Speaker 03:
The only point I would raise is, I mean, from the district court's perspective, there is a statute that everyone agreed excluded compensation for what certainly would be a settlement conference.

[00:35:46] Speaker 03:
And whether or not, even if it was not, if it had the deficiencies that are, as you indicated, unrebutted and that plaintiff identified,

[00:35:56] Speaker 03:
why these meetings nonetheless would not be statutorily excludable sessions.

[00:36:03] Speaker 03:
I think that's what the district court's finding was here.

[00:36:08] Speaker 05:
Well, actually what he said was, and I respect your caution about this one, and here's what he said.

[00:36:15] Speaker 05:
He said, the records indicate that the so-called settlement conferences satisfied at least some of the statutory requirements.

[00:36:25] Speaker 05:
And from that, he concluded, he said, that creates doubts as to whether compensation.

[00:36:31] Speaker 05:
I would suggest that if it only meets at least some, that's indicating that it didn't meet all.

[00:36:38] Speaker 05:
And that would be enough.

[00:36:40] Speaker 05:
In other words, the conclusion should be, okay, these are probably not resolution conferences.

[00:36:47] Speaker 05:
Right?

[00:36:48] Speaker 03:
Yes.

[00:36:48] Speaker 05:
Okay.

[00:36:49] Speaker 02:
Yeah.

[00:36:51] Speaker 02:
And if they're not, then what's the next conclusion?

[00:36:56] Speaker 03:
Well, if they're not, then they would be compensated.

[00:37:00] Speaker 05:
And whatever the reasonable rate is.

[00:37:03] Speaker 05:
Right?

[00:37:03] Speaker 05:
Right.

[00:37:04] Speaker 03:
I would suggest that the rate that the court reasonably found was the prevailing market rate.

[00:37:10] Speaker 03:
Do you have any other questions?

[00:37:12] Speaker 00:
No.

[00:37:13] Speaker 05:
No?

[00:37:13] Speaker 05:
OK.

[00:37:15] Speaker 05:
Thank you.

[00:37:18] Speaker 05:
Let's see.

[00:37:19] Speaker 05:
Mr. Turke, you had some affidavits to read to me, right?

[00:37:23] Speaker 05:
I do, your honor.

[00:37:24] Speaker 05:
OK.

[00:37:24] Speaker 05:
413 to 414.

[00:37:26] Speaker 04:
Yeah.

[00:37:27] Speaker 04:
424 to 427.

[00:37:30] Speaker 05:
Well, let's just read the first one.

[00:37:31] Speaker 05:
Read the best one, would you?

[00:37:35] Speaker 05:
Read the language you're talking about.

[00:37:42] Speaker 05:
Then you can give us all the pages, as long as they're not repetitive.

[00:37:47] Speaker 04:
They are repetitive with some differences.

[00:37:50] Speaker 04:
among them.

[00:37:51] Speaker 04:
This is from Ms.

[00:37:52] Speaker 04:
Savage on 424.

[00:37:55] Speaker 04:
Every IDEA case requires specialized non-legal knowledge regarding special education, including knowledge of other professional disciplines whose services the individual student might require.

[00:38:04] Speaker 04:
Every case requires knowledge of education policies, procedures, techniques, best practices, records, and administration.

[00:38:10] Speaker 04:
So that would be an additional category that's outside of it.

[00:38:13] Speaker 05:
I was asking for evidence that you agree with me that your obligation is to show not just

[00:38:19] Speaker 05:
these cases are complicated, but that they're equally complicated to other Laffey cases.

[00:38:24] Speaker 05:
That's what I'm looking for.

[00:38:27] Speaker 04:
So they're not actually repetitive because the different lawyers who testified about this had practiced in different areas to which Laffey had been applied.

[00:38:35] Speaker 04:
In fact, Ms.

[00:38:35] Speaker 04:
Savitz is one of them.

[00:38:36] Speaker 05:
Where did she make the comparison though?

[00:38:39] Speaker 05:
That's what I was looking for.

[00:38:41] Speaker 05:
Then the comparison I asked you about earlier, remember?

[00:38:43] Speaker 04:
Yeah, I understand, Your Honor.

[00:38:44] Speaker 05:
And what is that?

[00:38:45] Speaker 05:
Because according to Ely, this court can't do it itself, right?

[00:38:50] Speaker 04:
I believe not.

[00:38:52] Speaker 04:
Yeah.

[00:38:53] Speaker 04:
Will you cite them all in our brief?

[00:38:57] Speaker 04:
Yeah.

[00:38:58] Speaker 02:
Can you tell us the very parts of the dress that they look like?

[00:39:02] Speaker 05:
Where it is that when someone says something comparable to what I said to you earlier, which is, here's why these cases are complex, IDE cases.

[00:39:12] Speaker 05:
And I litigate employment cases and antitrust cases, or I've talked to people who do, and they are complicated for the same reason and identify what those reasons are.

[00:39:22] Speaker 05:
Where's that?

[00:39:25] Speaker 04:
I'm sorry.

[00:39:26] Speaker 04:
I'm going to choose which one your Honor is looking for.

[00:39:28] Speaker 05:
We have the paragraphs that address... I know you've said your cases are complex because they require expertise in non-legal areas, right?

[00:39:35] Speaker 05:
And because there's no discovery, you've got to prepare more comprehensively, right?

[00:39:39] Speaker 05:
Yes.

[00:39:40] Speaker 05:
But I don't get the next step in your affidavits.

[00:39:44] Speaker 04:
The step of comparing them to these other areas of litigation?

[00:39:47] Speaker 04:
Uh-huh.

[00:39:47] Speaker 04:
Oh, well, most of those, the way the affidavits are laid out, most of them, when the attorneys are

[00:39:51] Speaker 04:
able to make comparisons because they've worked in those areas.

[00:39:54] Speaker 04:
There is a statement, usually just in one or two sentences, saying, I have found it to be at least as complex.

[00:39:59] Speaker 04:
OK, I thought those are just conclusions.

[00:40:03] Speaker 04:
And then they say, for the reasons that we state.

[00:40:06] Speaker 04:
So they say we find these to be.

[00:40:07] Speaker 05:
OK, just tell me, if I'm going to write an opinion saying that you've satisfied your burden, give me the best sentence in an affidavit that says that, that has made the comparison.

[00:40:20] Speaker 05:
That's your best affidavit sentence or sentences that make the comparison to other Laffey cases.

[00:40:32] Speaker 05:
What do I say?

[00:40:38] Speaker 04:
Here's one from 424, Ms.

[00:40:39] Speaker 04:
Sabbath.

[00:40:40] Speaker 04:
I have found legal work under the IDEA to be at least as complex as employment discrimination and commercial dispute work.

[00:40:45] Speaker 05:
OK.

[00:40:47] Speaker 04:
Anything else?

[00:40:55] Speaker 04:
From Mr. Moran, this is on 430.

[00:40:57] Speaker 04:
I have found legal work under the IDEA to be as complex as the work involving the ICC.

[00:41:02] Speaker 05:
OK.

[00:41:02] Speaker 05:
All right.

[00:41:03] Speaker 05:
They're all like that, right?

[00:41:04] Speaker 04:
They're all like that, and then they present detail regarding this.

[00:41:06] Speaker 04:
Anything else?

[00:41:08] Speaker 05:
Anything else here?

[00:41:09] Speaker 04:
No.

[00:41:09] Speaker 04:
OK.

[00:41:10] Speaker 05:
Thank you.

[00:41:10] Speaker 05:
Well, the case is submitted.