at least in what happened in the district court they're considered undesirable but i consider this some of the most important work in attorney can do making the system more humane the commissioner argues that the only question before you is the number of hours my office spent in terms of representing sure on minor that is not the law citing johnson versus georgia to destry cork acknowledged that there are twelve criteria to be considered that's on id fourteen twenty two i'm not going to be labor all twelve criteria the question of individual hours expended is difficult to access assess i would point out that if i were fast and really good then i get a good result the same amount should be paid by the government if i'm slow and not really good and get a good result the same amount should be paid by the government just the fly specking of hours doesn't solve the problem the point there are certain points that are beyond dispute the hours were expended over a long period of time without any compensation cheryl minor endured years of deprivation and justifiably there was a seventy three per cent reduction in the number of hours of the most graphic being i was supposed to spend three fourths of an hour studying and nine hundred page transcript you looking over you doing it if i'm able to do that i'm brilliant but that's not the point it was i couldn't do it i'll tell you right off that finally i'm wondering if there's a pay it out of her benefit or is the government going to pay you is that correct correct that was the next thing i was going to say when was the equal access to justice act and i acted you know what year i don't i do know it was twenty at least over twenty years ago that's when the maximum for example of lee was one hundred twenty five an hour right and then he many years ago right and that's all the court allowed you was under twenty five an hour ago we presented evidence of cost of living the hourly rate well because what they did is they looked at all of the evidence of the how you practice law and they looked at the different costs that individuals have attorney attorney fees cost and they provided to the court the fact that one hundred twenty five dollars an hour is no longer applicable and so therefore it would have been useful at least to have increased it there's one point i do want to make the district court ordered the commissioner to pay eight thousand and eighty dollars they ordered cheryl minor to pay thirty five thousand three hundred twenty three dollars and twenty five cents that's a stark difference in terms of the same amount of hours was spent by my office the same level of it and the same result was spent very rarely all fall under the same him fully standard right everything is the same except cheryl has to pay thirty five thousand three hundred twenty three dollars and twenty five cents but that also takes into account you cream and between you and your it does it does but it also takes into account as the court said when they ordered that payment the level of skill that was brought to the result it was brought to and the hours that were spent are said you're entitled to the maximum twenty five percent over but because of the what i was going to say is it's almost like a double blind study in science it's automatically abuse of discretion where you have the same standard in the government pays eight thousand and cheryl piece thirty five thousand it's against the whole concept of egypt which is the shifting of fees from the individual and justifiably denied benefits to the government was unjust to fully denied the benefits that's what age is about shifting the cost of the the burden of attorney fees and that's and so what happened here is in direct conflict with that purpose you're saying if the government didn't allow if the court didn't allow you the same thirty five thousand roughly in the e j that's an abus discretion that's your position and i don't understand well i mean if the court if the court are you saying well to avoid an abuse of discretion the court should have given you a recovery of the full amount you got as the twenty five percent and as i said you're all mine or should have gotten there also i'm saying right cheryl minor she should not have carried the burden of this litigation if the court of giving you twenty five gave a given her twenty five thousand under the e a a j would that be an abuse of discretion because it well that's where it gets the point the point i made is it's a seventy three percent reduction you know and in ours and it's a tremendous reduction in terms of how much the government pays versus what cheryl p as it gets closer and closer it's harder to see abuse of discretion but we're not at that point that's not this case there was an abuse of discretion almost on its face when you see the difference between what to get where they're trying to shift burden ija to from cheryl to the gov have any case that supports your position that say a seventy three percent reduction in fact is an abus but i had one which i cited where it was ten percent versus five percent and the government said it was an abuse of discretion the court said it was a good use of discretion i think this is seventy three percent said you have to look beyond that and they've actually said you can look at the cost of living you can but but there's another aspect to that in answering that question i think it's important to understand that they routinely don't really analyze these cases if we hadn't gotten to the to the sixth circuit and had a really good and houses of this case and cheryl minor would be getting nothing and that's routine and they routinely then don't shift the burden of the litigation so if you look at routine that's why i said it's almost like these cases are undesirable they're not you're not important but they are important this is exactly how we make this system more humane is exactly the reason each year was passed do you think the problem is just the western district of basically reducing the hours of any single in activity by an attorney is is some is very subjective let's put it that way for instance they can do it if they want that yeah but yeah if they explain how do you explain i'm supposed to look over a nine hundred page transcript three fourths of an hour how do you explain that i'm not supposed to spend three hours looking over thirty nine page decision and studying it and understanding it because that's what i'm supposed to do i'm going to have to understand how the courts post to look at these cases not how the district court of the magistrate judge looks these cases how can you explain that three hours is too an hour you know they they didn't say it could have been well the one explanation they gave which is one is most troublesome they said this was a simple case this was there was easy law and there was no study required whoa wait a minute why did you decide it that way then if it was such a simple case if it was the law was clear if the facts were clear why making and how can it be not abuse of discretion when you're saying something that doesn't make any sense hoops eighty s the original rate was seventy five dollars an hour congress has amended that rate in the one nine hundred ninety s to one hundred twenty five dollars an hour that rate has not changed since then but about twenty years roughly it's been living has gone up does not constitute an abuse of discretion in lebanon the hourly rate awarded to the statutory cap of one hundred twenty five but i haven't bryant and this court also said the state bar reviews report is acceptable to delineate what our she says yes it is acceptable and maybe you tell ever this court did not require that it be used or mandate that it provided sufficient doesn't the court that ordered that were fused to accept that right have to give us an explanation of why for purposes of our reviews which is drilled out the public benefits attorneys the court found that it wasn't a basis for an upwards award it found that it wasn't a sufficient explanation and that it would but the question to you is what explanation did the court offer and while i'm looking for those that i would like to note that in at least the western district of michigan there is currently a debate as to whether or not the the bar is sufficient the bar acceptable it's my understanding the fact is the the bar gone per gone through it was used in that case to look for paralegal rates and not attorney rates it was also an acceptable method not that it was the required method well our question was whether we've said bethanie except a bill method to look at will be answer to that is yes it's an acceptable method but there's nothing requiring that it be used think the law for acquires though does doesn't henslee require that there be some explanation so we can have a reasonable appellate review and if the district court doesn't give a reasonable explanation of why it didn't accept the michigan thing or why it didn't accept the hours unilaterally cut the hours in specific instances if we have no basis then we have to re mad well here let's we started with rate and you're you have to and you've expressed concerns about the explanation for rate if we turn to hours the explanation for hours is exceedingly clear the court went through each of the hours requested and explained why the reduction was there who are stated reason without an explanation which may be fine in some for suspicion for example the plaintiff counsel question three point five hours to review the defendant's answer the answer was three pages and the court explains that there was little of any substance in those three pages there was nothing to constitute the three point five hours requested the court notice that there are other our entry is where the entries predated by two months the actual occurrence of the event specifically of review of defense  response plaintiff counsel indicated that that was performed in december of two thousand and ten when that was actually submitted two months later in two thousand and eleven the court noted the ija request was six point five hours initially and even motion was filed and amended either motion was later filed with little changes and an additional twenty three hours was requested the court found that twenty nine hours the additional  yes the so so you had six hours originally requested for the primary attorneys and then and addition of hours for someone else who is also working on the case right before work performed after the initial motion with the there's an financial i have a david popper for more and a number of exhibits and then the court just says i recommend half an hour it's been probably six years since i practiced i cannot fathom creating in the complaint in half an hour can you it would depend on the complaint the complaints i see in these cases that are often three paragraphs with those paragraphs being identical in case that there is no change in the allegation but the but i will quote insert written into the complaint even a short one groans from the basis of work and investigation that the council does in order to determine whether what are perhaps routine to use to fit the facts of the case in which that counsel is involved i'm struggling with this because it sings to me that that your attorney of those his or her client a duty of appropriate representation and to understand and analyze all the issues and to raise them because if they don't run them the court below and this court is going to say you blew it you missed this opportunity so you know i guess i would i would i would like a reasoned conversation about what this order entails how could could someone in your office have reviewed another hundred page administrative transcripts in forty five minutes that you bring up a very important point and that is not to root to review and its entire eats it is to receive review it counsel represented plaintiff in the underlying administrative proceeding those work done at the administrative proceedings are not compatible under the ija so what the attorney the judge did was say that it will not compensate duplicative effort it will not compensate for things that have already been done the counsel was familiar with this case the milieu with the records in another one hundred page transcript from which you need to draw issues to argue on appeal and you need to cite or explain what those issues are and how they were held is it your position that you would automatically remember the seven days of trial testimony and be able to a media outlet you review say on in forty five minutes and know exactly where the issues are raised i just don't think that addresses the practicality of the practice of law your hon we or you will or someone may disagree with the court the question is whether the court had a factual basis and whether there was abuse whether the guy was explained if your actual bugs in here it did sound that it was it was unfair to award time for duplicative effort for work that had already been done this is not a case where it's a new there are new issues there are new but i guess i'm kind of back to the practical that trial transcript because it's the only way i can write an appropriate appeal that takes a lot of time i don't see an explanation that indicates to me that the court considered or even explained that because i understand he can't get paid for the administrative work but when i try a case and when i come back in to file an appeal it's not the administrative work on doing it's that was its its reasoning this is what the reason we decide it is that it's clear that we disagree as to how much time would be needed to review and redo efforts the court found that it was duplicative and it shouldn't be awarded it shouldn't be charged to the government in any event but that is one entry and in many of that all that sort of isolates the numerous numerous reasons the court provided for reducing our so even if even if we were to find that he should have been awarded the full mind hours to review of the transcript that doesn't erase the other reasons and the other explanation provided by the court cannot help me talk to me with the explanation of eleven different orders letters and motions and the recommendation was to reduce this to thirty minutes to review the order flutters in motion that's less than three minutes per document i didn't see an explanation that would say that is an adequate amount of what is your understanding of the basic nature of the court was for miller with what those orders were those were its orders and it found that three minutes was the fish it off and they are confirming the the docket change confirming the dates compare and i can see that it would take three minutes or in total of thirty minutes to put that on the calendar to forward it to a secretary for for docketing the court looked at the facts at its own records its own orders and found at that time with the fish and judge did not explain the first these were his routine they were half page orders are written there's nothing in the record that i see that explains that how can we do a meaningful review or do we just have take it face value whatever the magistrate judge substantial deference so in unless we see a clear error in their reasoning or elicit the failure to offer reason in our estimation correct there may be some difference as to whether or not you believe the explanation is adequate there are cases where a simple explanation of excessive has been found sufficient so if you're going to increase that argument articulation standard that sort of a different issue but the courts the district court speak given substantial deference in their understanding of the facts and basis castle talks about sort of this chilling effect this seventy three percent reduction would have that is not the case in recent cases in the western district of michigan counsel for in the underlying case so we're careful here was awarded thirty one hours councils have been are awarded twenty two point nine hours and thompson sixteen point six hours  sorenson and eighteen point zero five and show me there's going to be no chilling effect in this case the court was intimately familiar with the type of case i see that my time has expired so i may proceed but how  there's also four of six b which allows for contingency fees it allows for the court to recognize and acknowledge and provide an award consistent with the fear range meant rate a rate reached by the parties the supreme situations is providing different to gatekeeper role in the ija the court is the gatekeeper making sure that the hours are reasonable that there is a prevailing party that there was no substantial sophistication in the four of six be arena the court serves as a different gatekeeper and only looks to whether there was improper or ineffective assistance or whether there was a windfall in this case the district court found that even at sixty one hours at a rate of five hundred  seventy nine dollars an hour there was no windfall so the court went through and its gatekeeper function which are separate and distinct for each compensatory scheme for attorney's fees for social security work first in terms of we're going to look at abuse of discretion we have to look at the decision as a whole at every level in every way the court refused to accept standards that would ordinarily be accepted for instance they they refused to accept the state board the bar associations and analysis they refused to look at a cost of living adjustment and then they fly specked the hours in a way that was obviously impossible to have done and the most important part of all this that in the in the contingency fee case they looked at the result in the ordering the government they did not look at the result they did not say that the result in must a crew of an attorney fees of of consistent amount i thought it was interesting that counsel listed the hours for cases before the western district and i'm very shocked by that and very worried by that sixteen hours to do an appeal before the western district nine hours to do an appeal before the western district among what we're doing if that's what they're doing we're looking for inadequate representation that's what they're doing they're saying ok you can do this that's why i said it's treated as if it's an undesirable case now let's assume that part of the issue is that cases differ understand not sure how you can make an assessment of a case that had a one day hearing versus a case that went on for seven days or a case in which there is no question that the government's position was not substantially justified in one in which the government either admits they have or on the alternative does not admit that they were substantial justification so so in effect it's apples to oranges right i agree but sixteen hours let's go let's go back to this transcript the purpose of reviewing the transcript is really not duplicative at all because what you're doing is you're preparing based on the transcript been prepared for a brief with citations analysis it's saturday that's what you're doing when you go over that transcript you're not thinking well i tried to even let's say i remember i asked this question and i got this answer i still got to go through the transcript and find the citation and make sure that's the answer that i got and did it say exactly what i remember well you know there's no way in the world that i can do that simply b by my memory it's well first of all i can cite to it i couldn't tell the judge i remember asking that question but but you build the term separately write a certain amount of time for going over the transcript in a certain amount of time to the brief yes exactly because you can't write the brief until you've spent a considerable amount of time really in many ways page by page i mean what you do is you go to you go to the administrative law judge decision you read that very carefully and then you go to the transcript to see the extent to which is accepted and if you if you look at the decision by the sixth circuit that was the very thing that was missing  by the district judge in terms of looking at the relationship between the transcript and the decision that was made by the commissioner but i want to emphasize that it said every level that the money was spent every level i mean the money was denied the government didn't have to pay and there were there is a relationship between what cheryl minor has  government has to pay because the government admits that this was unjustified bill action and therefore you have to look at why would she pay this huge amount of money when and the government pay little different if this is the standard is different but but her argument may be that there had been sufficient explanation by the district court of the reduction in the fees as opposed to trying to justify the contingency well at every level there hadn't and it's just it's not just the hours it's not just the state bar it's it's not just the fact that they didn't look at the result is that every point there is a reduction