veterans court applied an incorrect legal rule that severely penalizes better and it helped attorneys fees for a task undisputedly needed to bring any successful claim on appeal here record review may be slashed simply because the appeal also involves unsuccessful claims the veterans court to rule can i just i'm sorry to interrupt you but i have a feeling there might be less the questions we are limited in time so let me start you off i need your help let's assume hypothetically that we were sympathetic to your arguments in this particular case my concern is what standard we set  in light of that reversal this these cases there's a lot of discretion for the judges egypt this is all based on the context in this particular case the government made some concessions which may be a lot of the issues we have to confront so i'm going to give you two hypotheticals change the facts the little and let me see we go with those two changes from our case is less assume with respect to each of the seven claiming the record was very well sorted out and there were separate chapters a separate chapter for each of the claims it was not a question of having to sort through everything to find anything and nd let's assume and or  the party here your client was asking for four times the amount of money for reviewing each page then in fact you did request does that change what's going on  here if it could your honor in terms of the standards that this court should apply the rule that we urge is clear and simple and yet narrow it is that the time spent on a task necessary in its entirety for the pursuit of a successful appeal specifically time spent on record review may not be slashed simply because the appeal also involves unsuccessful claims and these types of veterans cases with wishes the specific universe that this court is now confronting there are particular reasons why it's important for counsel to review the entire record often counsel our record and that was my hypothetical st the your answer to me so far is saying for time spent i don't think you really mean that i mean it's all reasonable time spent and so there's a little give there perhaps you would agree and that may not be what if what if the record yes as as to your honor's st point there may be cases in which the time spent reviewing the record was excessive or duplicative as in the case that the government cites the wagner two case but that is not the case here and there's no allegation as such it took counsel eighteen hours to review and over nine thousand dollars page records that's a rate of about five hundred dollars pages per hour eight five pages per minute for which counsel is seeking three thousand six hundred dollars and the dispute is now over thousand four hundred dollars it may be a different case if there were a record that were very well sorted out and segregated by claim but that's not the universe of veterans cases that this court is now confronting these veterans appeals involve of documents in the record medical records service records educational benefits that are not organized by claim or disability for example co counsel from the veterans legal advocacy group once found proof that a veteran had been suffering seizures from an anti seizure medication and a treatment record for a hurt elbow so it is essential for counsel particularly in these types of veterans appeals to review the entire particularly since as this court noted in cali versus nicholson often an appeal to the veterans court is the st time that a veteran is represented by an attorney in fact a review of the record is needed for to make sure that the court has all the evidence it needs before it to decide the case are going to emerge from the record fact of record may establish that there are no valid claims for real is it your are you arguing that at that point the time spent and sorting out the record to find out what is and the causes of action exists ought to be fully reimbursable assuming they're reasonable and if later on specific claims develop the development of those specific claims perhaps you will not be compensated the time for is unless they're successful is that basically what you're arguing yes your honor and the veterans counsel here excluded time that was specifically devoted to crafting arguments on unsuccessful claims from the attorney's fee application the point is that there is need to be a baseline record review to identify claims in the st place and also to take out evidence that's needed to support any successful claim which may be buried at outcome and here there is i don't see the counsel of the thing that bothers me about your answer and maybe i'm wrong is that if that if the time is spent reviewing the records and they come up with the one claim that ultimately they prevail on that obviously makes perfect sense but if you may use that time on the record reviewing whether or not each of the seven claim warranted review and and you bet wrong and and we all are obviously operating under  you so really the time that you spend going through the records and ascertaining and preparing yes we think this is a good claim here's how we can pursue it based on the record is that really what you think you should be compensated for well it's there's no dispute here is that certain documents in the record were not all to milly used to support the successful gastrointestinal claim but there is also no dispute that counsel needed to review the entire record in order to bring the successful claim and to the government here conceded that it is sensible for attorneys in all cases to review the entirety of the record one way of looking at it is as follows if the veteran here had brought only the gastrointestinal claim and counsel spent eighteen hours reviewing the same over nine thousand dollars page record and saw three thousand six hundred dollars for doing so nobody disputes that it would have been reasonable to take that time to review the record why should that change simply because there were all also unsuccessful claims this the th circuit held in the chemical manufacturers case that even though the plaintiffs there was the claimant there was successful only on two of thirteen issues all of the time spent reviewing the record with time indispensable to the prosecution of the successful claim and should therefore be compensated install this counsel in this case and the government didn't say that eighteen hours was too much to review the whole record if there was a need to review the whole record right that's correct your honor and so as i understand it your position is it would just be almost malpractise for counsel not to look at the whole record to make sure that there's not something in there that would justify a claim or support any particular claim right that's exactly right your honor and indeed the government does not dispute that it is a requirement of competent appellate advocacy to review the entire record and there are particular reasons that in this universe of veterans cases it's especially essential for that type of record review to court that are in score its decision if allowed to stand will have a significantly detrimental effect on veterans councils ability to bring these types of appeals as noted by the unique the public interest organizations in effect what the veterans court has done is to create an exception from the ordinary standards of competent appellate advocacy just for veterans and that stuart's congress's interest in empowering but against a secret view of unjustified agency action as  confusion in my mind perhaps you could help me with that was there some sort of presumption in favor of reduction of the veterans court apply or was it simply that a matter of the presumption or the numerical reduction it's that the veterans court reduced time that was needed to pursue a successful claim merely because there were also unsuccessful claims and that violates the supreme court's clear ruling that plaintiffs must be compensated for tasks that are needed to pursue a successful claim as the th circuit indicated its legal role and  off in terms of what you say the error that you allege the the particular c a b c judge went here and if they've been doing it right in your view in most if not all other cases in terms of applying applied in this case was an outlier the case that the veterans court cited to support its ruling here the klein case is an outlier even in the context of the veterans court's own decisions that case has never been applied to reduce the compensable time for spent on a review of the record before the agency and in fact clients cited cases that support the office of proposition that record review time that inextricably linked to the press is inextricably linked to the preparation of the entire case and cannot be apportioned to compensable versus non compensable issues that's the vasquez flores case and he talks and case so is it fair to say that for the most part  decision were allowed to stand it would become unfortunately much more common for time spent on record review which is time that's concededly necessary to pursue any successful appeal to be slashed simply because of the presence made clear that in determining the reasonableness of an attorney's fiord courts must adhere to the correct legal standards for instance in the wagner one case from two thousand and eleven this court exercise jurisdiction overruled the denial of aeg encounter versus nicholson and patrick versus shinseki this court indicated that where adoption of a particular legal standard dictates the outcome of a case based on undisputed facts we may dress that issue as a question of law and here the veterans court applied the legal standard that the time necessary to pursue a successful claim may be slashed merely because of the presence of unsuccessful claims and it's that rule that we urge this co can't you just heard a friend on the other side say that that she's not asking for a change in the law she's asking for the law to be properly applied and if that standard is reasonable in this there was no claim eighteen hours to review the entire record was unreasonable was there for the actual time spent reviewing the record i don't believe so your honor not ok and  you as a lawyer for the government would you ever go into a case without reviewing the entirety of the record well your honor we certainly agree that entire record no your honor but i would also make the distinction that not only so you can use taxpayer dollars to to review an entire record regardless of what claims are asserted but but plaintiff it's not reasonable fees by having an entry that says there was one dollar and a half hours spent reviewing the record for completeness and relevancy which began their record review and then there are additional countries that went back to reviewing the entirety of the record in different page no takes you didn't object to those things what you objected to was you simply said we need to apportion it because some claims were they reviewed it quickly and then they went back and read it more thoroughly and you didn't object to the fact that there was some that was quick review and some of that was more thorough for you you only said a portion out some time because some of the claims weren't successful right that's correct your honor however i believe what this discussion pertains to is the question of whether or not it would have been reasonable as there was the discussion in the prior argument whether or not it would have been reasonable had only the gastrointestinal claim been brought to have reviewed the record for eighteen hours because that was not the context that was only the winning claim but had an identical record review was here sifting out the claims that he shouldn't bring would we have any doubt that he would be entitled to reimbursement for that record  review i believe there would be some doubt it for the eighteen hours for the record review at least let's put it this way your honor the veterans court would have had an opportunity to examine back question and it would have been raised below as counsel for appellant conceded there is no dispute that within those eighteen hours time was spent reviewing the record that did not relate to the successful claim so we know that those  me lewd to you for a moment from your own brief your own brief on page twenty says it is notable that is brief before this court mrs smith does not make any assertion that the entire record was in he had to review the trial record in order to prepare his appeal he didn't know at that point exactly what causes of action he was going to pursuing and whether any of the case has said that you need to look at things that would have to be done anyway for purposes of pursuing a successful claim so in other words if you have to depose the plaintiff you don't say i mean have to depose the defendant you don't say we're only going to allow you fees for the questions that you specifically asked on the claim that was successful every court has said if the things that are incident to the case and have to be done then you don't parse them out but where you can as the court did with respect to the other activities in the case for instance the briefing that that can be parsed out but if things have to be done anyway and this as you've just conceded is what a reasonable responsible lawyer would do which is review the whole record just as you would then and then how can that not be necessary to the case as a whole there referred to the nets the necessity that appellant's counsel exercised with the supreme court called building judgment in reviewing that record so in other words counsel would review the record as a whole you know likely very quickly as they did so here to determine completeness and relevance but then with extra it was building judgments and legibility they had to go back to determine relevance there was still a nine thousand page record completeness and legibility yes your honor but again there we look back to the conceded factual points that their entire review did not relate to the successful claim and the supreme court said that the degree of success was the most critical factor when determining whether or not he should be awarded well let me give you an example and this is probably one of a one hundred cases that i that i could easily consist considering i wrote cases one as at this a court level but the th circuit for instance said in a strike that a partially prevailing plaintiff should be compensated for the legal expenses he would have borne if his suit had been confined to the ground on which he prevailed and that you shouldn't then parse out those expenses that he would have had to have engaged in right related to the unsuccessful climbs it well with respect your honor it reduced the field ward as a whole recognizing that well yes there would have been some things that had to have happened they might not have been as long or complex had only the successful claims that brought and in fact that's actually what the veterans court did here the there were eighteen hours proposed and had the veterans court just do that they reduced it by twelve hours taking into account the very thing that we're currently discussing that there is a need to do certain tasks were guard of how of how many claims are successful but the court is still bound by the directive from the supreme court in hensley that the success or failure factor and i want to understand exactly what is it the most important factor in your honor is the supreme court was discussing the the general application of the aeg statute and saying that c should only be awarded for work that pertained to successful claim the right and what what puzzles me counsel is that you can't have a successful claim and tool you know what the record is in your case i don't see you're familiar with rule eleven counsels federal filing claims or causes of action in any federal court obviously there are related rules like that for appellate work or certainly related d expectations if it's his client had sued him for failing d to have understood the record that would be a whole separate set of issues wouldn't it yes your honor however there there is a necessity in the ija statute as courts have recognized to create a balance between the availability of fees for counsel bringing suit against the government against the expenditure of taxpayer dollars and the one of the ways that the ija attempts to strike that balance is by providing for payments only in the cases where the party has prevailed so what he has or he has prevailed in this case yes your honor but is only prevailed on a single claim out of seven and he did not claim he did not if i understand the record correctly he did not claim any hours for work spent on those other particular claims the only thing if i understand the recognize five got it wrong please advise as i understand the record he's not flaming time for say hell claims he's claiming ton for getting the right to the record enough to figure out what his possible claims good day is and that are valid distinction well your honor respectfully i would disagree to the extent that there is i feel my time has expired if i might just complete respond ok i think your honor respectfully he he is asking for time expended on claims that he was not successful specifically because removed time spent on briefing and other matters the appellant did not remove that time when it came to a record review and has sought that time even though it was expended on those unsuccessful quite good i have three g eight that you clarified that point for the record chief judge if i could just ask one more quick question that's on a different issue of course  application as it's in chapter twenty eight dollars and not thirty eight dollars so in terms of the the canon of veterans law the ija is outside of that and i would refer to the court's decision but let me use a little bit of your for a minute to start off if you don't and that's some of what's been said and i just think some some folks and including me are using maybe imprecise or more expensive language and they inten so i just want to be clear is that your view that you were entitle to the amount because review of the whole record is necessary to the acclaim which you prevailed because you've got to sort it through and see if there's anything relevant to that claim and your but your position is not on the other hand that because you didn't know at the time which claims were going to be relevant you could review and spend time on each and job ward for claims that turned out to not to be successful i'm assuming your answer is that the former but i want to be clear yes it's the former and contrary to what counsel just mentioned there is no agreement in this case that the entire review did not relate to the successful claim there it is clear that not every document in the record was ultimately used to support the successful claim but the point is that for the reasons your honor was just mentioning record review would nevertheless have been necessary had only the successful claim been brought to identify evidence needed to pursue the successful th circuit case apply the clear legal rule that the veterans court should have applied in this case which is that counsel veterans should be compensated for tasks that would have been needed had only the successful claim been brought the th circuit in chemical manufacturers applied rule specifically to the task of record review and indicated that that task should be compensated in full the veterans court however did not apply that standard  proceeded task by task in deciding what compensation should be awarded and did not confront the point which we made below in appendix two dollars to seventeen dollars that record review is needed it in its entirety in order to pursue th indicated the veteran's council did hear what every reasonable and responsible lawyer would do which is to review the entire record the government in fact agrees that review of the record is a necessary component of advocacy and the question is why veterans should be penalized for their counsel's undertaking a task that every appellate advocate must do which is particularly necessary and better and cases this case is straightforward if the veteran had chosen to raise only the successful gastrointestinal claim counsel would still have needed to review the same appellate record at the outset to gather evidence needed to support the successful claim because nobody contests that point or argues that the eighteen hours spent on that task was excessive he indisputably would be entitled to full recovery for those hours slashing those hours simply because the veteran chose to add some additional on successful claims wouldn't duly penalize veterans and violate the supreme court's mandate that veterans must recover for all time reasonably spent in achieving the favorable outcome therefore we urge the court to reverse the veterans court decision and remain with instruction to include in the attorneys the award the eighteen hours