cases and help that henceforward the losartan vaccine cases would be calculated according to prevailing market rates in the former district which this court defined as the district of columbia unless there is a very significant difference between y matrix just looking at the laughing case itself it was a thirteen year litigation with multiple appeals it was very complex litigation and this was a table case which suggests that it was not in that category that would require columbia is best expressed by the mr resnick the respondents witness who says in his declaration which we both cited side in the brief something that lacked the matrix has become the default model for all federal fee shifting litigation in the district of columbia and in fact that is really uncontroverted and when you look at not just their evidence but all cases that have been designed over the years we find that it is  include cases in which a of litigation over unpaid wages for two to individuals under the fair labor standards act of a suit for injunction against prospective violation of two teachers free speech rights of a civil rights suit based on the refusal of taxi cab service in the district on a single occasion a case in which there is a deep fault judgement arising from a claim of an aide wages now that it would be more appropriate to look at they kind of the comparison of other rates she's had enough of a multitude of other cases why isn't that experience special minister in this case but that was simply an persuasive because that particular special minister had no particular experience in setting the terms of the rates in the district of columbia the special master has never up until this case actually  that according to martin del public there are forty one thousand attorneys in the district of columbia and the vaccine it has been present in place for over two decades and there's been only one fetal word to a district of columbia practitioner and that is infant and in that case there was no little showing of prevailing market rates whatsoever that's apparent from the face of the decision to decoration supporting the rate in that case both of them said the rate is totally acceptable clearly this decision cannot be used or interpreted as evidence for attorneys outside of the boston community and any presidential nominee of this decision is restricted to the name the turns of the special ministers  duress and did not reflect the prevailing market rates so that when we look at what the special master actually relied on here we see that the evidence is insufficient to meet this court's standard in a very it simply can something more complex that is routinely granted in the district of columbia in federal litigation that is admitted to be the prevailing rate by the united states attorney's office for the district of columbia and that's published as rates that they will accept an ups and let me just suggest that those rates are actually very close to the rates that we have in big cities such as manhattan new york where mr mchugh is from and the central district of california in which i practice my rate is first seventy five an that's in the record mr mchugh says for fifty an hour that's in the record and the last few matrix is for sixty five in this case we have the bizarre the anomaly that when i stop working on another federal civil case and switch to this case my weight goes down two hundred dollars an hour automatically the send thing for mr mchugh it goes down about twenty five percent on really and we're not an office attorneys we're not junior lawyers and what i'm competent lawyers so let me suggest that district rates and very unreliable because one of them is negotiate it i suppose me as for a nonprofit clinic in the other the case of the special master who decided that case said it can't be used elsewhere it applies only to the boston community only  of law as there was in this case then the question is that it's a legal question could you come back to one point i haven't heard you address and that is this isn't very complex litigation oh i think that's not quite true your honor i think it's highly complex but let me just say i have been aware for twenty eight years i've practiced in a wide variety of areas this is as complex as anything as accorded monta verde said but would you accept th attorney for the rates could vary based on the complexity of the litigation of the particular litigation within a field i'm not quite sure which of course what your owners are asking now i'm saying if a case is an easy slam dunk case maybe it doesn't get eight hundred dollars an hour even if it is handled by a senior attorney no i think that's in conflict with the supreme court has said in this area what the supreme court has said most recently and can produce what happened in one versus encouraged no one would suggest that because attorneys and perhaps the juries in the previous case took their case to arbitration as opposed to going in front of this court that the for their wishes be slashed forty percent to twenty five percent or any degree the advantages of that streamlined procedures here are all in the lower number of hours not the skill of the attorney that he or she brings to the case and scenting is true and that's enough litigation in cases like this one were there where we started out as a table that case but the government refused to accept that in the special master refused to accept that and we had a full hearing with competing experts on both sides who had to be prepared who had to be examined then we had a post hearing briefing no one would suggest that was one complex litigation says that the laughing matrix has become the default measure of attorney fees in i think he said federal litigation picks tended quite broadly do you accept that character other cases it's within the discretion and starting tension based upon the stream one procedures from the vaccine program the lack of depositions and discovery the fact that there's no rules of evidence in contrast  gainers response to that is that the rate shouldn't change the streamline procedure would just hold the hours down and so the compensation will be less because it's a streamlined procedure but the rate of the attorney should not be affected by that complexity factor disagree with that as well i think that the rate means to be based on the services provided and it needs to be based on the lodestar as reporters helping to bear and long and it needs to be a street the procedures her attorneys themselves are streamlined as mr gainer alluded to i've been practicing for twenty years i practice both in and outside of the program and inside and i've done litigation outside of the program the vaccine program is very unique in the fact that you don't have of experts and expert reports come in medical literature comes in all that information comes in because of the lack of rules of evidence making the job of the attorney actually easier than the complex federal litigation that latvia's applying to should what advice would you give to this court in setting attorney feet policy here whatever we say in this opinion could be construed as a rule applying a future cases what role should we give to the latter matrix well your honor my advice would be that based upon the policy arguments that have been made by petitioners counsel there's really no policy basis to change what has happened  but we don't think that the laughing matrix is the political measure a benchmark for off or race for attorneys in the vaccine program there's no really good policy argument to change what the law is at this point in time if there are if the law is not working contention would be that congress of the appropriate authority to make changes perhaps setting up some type of fee schedule under the statute you seem to be saying just there are no rules leave it to the discretion of the judges whatever form there's no good policy argument either based upon the fact that it seems to be working petitioner's counsel there's no shortage of petitioners counts in the program there's been no evidence presented here of any shortage of the teachers counselor program and it seems to be working and special master was appropriate to look at respondents evidence and other evidence which is allowed to do under the vaccine act as long as she makes it part of the record her decisions from the courts of federal claims and ensured there was more as i stated considered laughter but she rejected it as insufficient evidence or reason why the rate she looked at professor meyers rate which is one of the only two attorneys in the practice in the district of columbia records that provide services to the vaccine program rates basically fell in line into the three hundred to three hundred thirty dollars per hour range for the relevant time period that we're talking about here and that's again similar to what the special master's special master did in a c s case and based upon it she may determine a form rate based upon that evidence which was consistent with the evidence and following the law in this case she found that the form rate was lower than the the requested local rate and found the former rate for mr mchugh mr gainer appropriately experience with the same experiences as these gentlemen here for non complex federal litigation there is one additional case that i found since we fought our briefs i just like to provide that cite for what it's worth it is for years obviously it would be something that we consider our but there are some during the argument itself there was some conversation as to whether or not that panel would even have to reach that decision because of the fact that there was a very significant difference between what any type of former rate would be and what mr moxley in that case is local rate in china wyoming so it's a bit different than what we have here and short the special masters decision here regarding the rate that you arrived at for the form for these gentlemen is appropriate and is supported by the evidence based upon the years of experience the work that was performed and the program factors up she probably was and acted within her discretion as set forth by your port for special masters that special to talk just very briefly because i only have for a short time about the practical consequences of affirming the court and the special master in this case we are getting into a very  special minister in the case called schuman versus circuitry and h h s decided after the briefing in this case on august tenth on the loop of this here are considered the claim of an attorney from huntington vermont a small town in vermont and between the district of columbia and small town huntington vermont and anomalous result i would imagine in the eyes of most attorneys and judges familiar with practice in either area if the special master has affirmed here a verdict is effectively a novelty it can't be applied because there was no way of measuring the prevailing market rate according to the special masters interpretation of the than by looking not only to the district we were only have two examples of more than twenty years of litigation but those were and looking only to that scene act cases and falling into the micro market fell seat which has been dissatisfaction with the litigation problems he didn't really say is the default rate for all federal litigation he was commenting moron it's a default caused by shifting litigation isn't it your honor i think that what he was saying was reflecting the actual practice of the district of columbia courts the district courts which routinely apply the lefty matrix in federal fish shifting litigation virtually every description in the district of columbia district court and that is what mr resonates with is recognizing and that is in fact the reality and goes on to say i would have never dreamed that this is what my efforts would  concerned about your characterization of something which seems to be a little out of the context of what the expert actually said this is a defense to corish and as lawyers routinely do they look through the evidence of the other son and then look at it carefully and i look at wish that the whole system even his contribution to what he's not in door seeing the laughing matrix he's saying it's part of the problem not part of the solution you litigation in the district of columbia federal district courts he's recognized that it has become the default mob is not and perhaps he doesn't have to be we're not here to assure his happiness we're not and he may have been reluctant but he it and it's the way it is the default norm and if it's not given in this case and the court doesn't recognize it in this case the what's going to happen is results like this case where my weight when i  because what is demonstrated by this decision is the special ministers are reluctant and won't apply confer to find a privileged market rate