good morning your honour's my name is edward m over on the attorney for the appellant show soprano's though with court's permission i'd like to reserve two minutes for rebuttal you may think you have to help keep track of your own time but that's the total i will judge thank you on march fourth two thousand and three the ninth circuit decided the merits of this appeal at that time it concluded that the administrative law judge of the social security administration committed a significant error of service that says from nine hundred ninety five through the present in only six percent of federal court of appeals from the social security administration our case is reversed for payment of benefits that's the remedy that this court case than the act this is a case that didn't turn on substantial evidence this is a case where the ninth circuit decided the merits instead there is an error of law that requires reaming and for payment of benefits and i the question how can it be reasonable if the ultimate decision is that the administrative law judge committed a significant error of law while i have you know whenever you tell a judge that if they ever make an error of law here i don't know that's that's not something that i don't think any of us can sit here and tell you we've never made an error of law here honor but the question is whether the error of the law was reasonable and i would argue that in this case it was not the district court denied the application for equal access to justice act attorneys fees pretty much on three grounds the first ground was that the agency in the district court found that the decision that i want you to address is i feel like you're bringing up arguments here for the first time that weren't before the district court that that was the tactic that was argued the for the district court and now we're developing new arguments here actually your hon one that i can understand better what exactly is the concern that is being right and what did you present your argument that the commissioner's position must be justified on the whole to the district court in your motion pro tourney your honor i would agree and that people can reasonably disagree but in this case the determination of this circuit was that the secretary of the administrative law judge committed a significant  nother argument that i gleaned from the brief was that i know so believe the district court committed an error of law by focusing its consideration of the of his motion for attorney's fees under the equal access to justice act on the narrow issue on which the this court remanded the case for payment of benefits  being being that the commissioner did not properly consider and weigh the medical sources opinions those would be arguments i not was permitted to consider its prior decision finding that the commissioners did determination as a wasn't it wasn't disabled yes your honor two of them one on one and two of them on the other yes your honor so in accord with what the district court did we believe that that was that was permissible they did not abuse of discretion in doing that the court did not abuse discretion in doing that numbered number to the district court did with this court expected to do it considered whether the narrow issue upon which this court remanded the case was substantially justified and found that it was while it appears to the district court judge did aside from referencing its own decision in this in october two thousand and one decision  affirming the commissioner and aside from referencing judge b s was dissent also indicated that the commissioner had been consistent in its positions before the courts and also  so your honor it's the commissioner's position in that respect that he just recorded not abuse its discretion and that it did exactly what it was supposed to do here but that but being wrong and whether you're substantially justified or not one in this ng we have to look further and i did do definitely understand that distinction but i would urge this court first to look at the lauer case in the eighth circuit because the next case the courts in this the only court that i know of that address this issue head on said that while we have extreme specked for the judge who dissented we have to look at the majority opinion because that is what carries the day and in that case they found that even though there was a split in the panel that the government's position was not substantially justified is the only case that i have found in any of the circuits that's right on point the free speech coalition case that i brought to the court's attention with my rule twenty eight letter is definitely distinguishable because it was so different it was a novel case of constitution of the child pornography pornography protection act where the district court when it ruled there were already four other circuits the founder of the statute was constitutional that's a very different type of case and this is a case really where the only this case back to the district court so that it can look at the entire case as a whole the district court only addressed that one issue the credibility issue