act starting to notice i was surprised in reading both sides briefs not to see any discussion really about the reasonableness of the government's position on the central issues in this case and there is a lot of discussion about what other court of federal claims judges did and argued the government didn't appeal some of those decisions but there's just no discussion  the the merits of the government's positions that it took and whether those positions were reasonable or not well it's a very interesting situation your honor because that his actions that the government took are not reflected we believe in the opinion of the court of the federal party about the reasonableness of the government's position with respect to the statutory requirement rather comparability studies of the one percent there is no discussion of whether there was reasonable reasonable we believe that the government are we believe that the primary position and has to be addressed here is the conduct of the underlying agency in this case that hud took on reasonable positions when carried when it did not follow the previous quarter of this court and that that is what merits awarding of attorney's fees here can i ask you when when you filed an ija motion right and then the government oppose in the government's opposition get it set forth explanation why even though it had a last on the contract issue its position was reasonable respectfully i'd leave that to the government to answer i doubt was a question about what was in their papers generally so did they set forth an explanation for why they're ultimately losing position and breach of contract was nevertheless a reasonable because i don't believe  in failing to follow the previous orders of this court the conduct of the government in dragging out this litigation we believe that those are the bases of awarding attorneys fees here ok thank you ron are there was no a breach and basically ignore that ruling what we have to emphasize here is that the conduct of the government and what towards these plaintiffs affected not only these plaintiffs but numerous thousands of other section eight housing itself reasonable then nothing else you say matters right i'm sorry can you say that again you are if the government though having lost the breach of contract issue head was a a defense that was reasonable though wrong then nothing else you say matters never getting these contracts so that there was no reasonable basis for the government to have said for example based on the overall limitation provision the one thousand nine hundred four legislation wasn't actually a breach but the court to find that it was a breach party and the only issue that they point to on which the plaintiffs did not prevail was a procedural issue about whether the plaintiffs needed to bring renewal rates claims in that an existing lawsuit or bring them into a did not see that in there it is at docket one sixty eight of the rather violent mark sixty eight hundred fifty it seems to be that that paper seems to be somewhat similar to your brief here which also doesn't address the reasonable most of spine of the arguments that were put forth and we were discussing the trial court's opinion on each of which doesn't discuss those those issues explicitly one by one i'm prepared to do so now if if the court would prefer and with with respect to cuyahoga the issue of whether the statute of congress breached the contracts there was an issue of whether sovereign immunity prohibited that in the unmistakeable of the dock or cuyahoga said this is a very difficult question involved interpretation of the winstar opinion which had you know three different opinions on which was a total majority and knowledge it was a very difficult issue the future decisions of the court or federal claims even though they came out against us all relying upon cuyahoga which conceded that that's a very difficult issue under the standard for substantial justification which is whether there is a reasonable basis of law in fact whether reasonable minds differ the fact that the seminal case which semed all these other cases said that this is a very hard issue and there yes there's also a dispute among the court federal claims with respect to some of the other subsidiary issues for example there was an issue whether there this one percent adoption would apply there show that there was a material difference and limit rent increases the issue was whether it was that statute what was no longer able to do that after the one thousand nine hundred four statute had changed the procedure for the rent increases could hunt still go ultimately this court came out the other way but again the fact that there is a dispute among the court of federal claims with respect to one of the questions which was found to be a breach supports the finding that the government's position was substantially justified also with respect to the  overall imitation plazas we cite in our papers the first circuit and the one in ken valley case actually come out the other way in the when federal circuit appears to have done and you have an housing associates case although the first circuit distinguished hadn't in a footnote because the first circuit or whether the one thousand nine hundred four statute because it put the onus on the property owner that means hud couldn't do it itself anymore that clause was just simply only not a sponsor in these cases the government was trying to come in with comparability studies which supported  the issue that was dealt with by the court in this case was whether the provision that eliminated the that the put the onus on the owner to come up with the right comparability study whether that meant that it can still do it itself i don't believe that in this one it's just whether that provision was completely written out of the contract but again the fact there is tension the fact that you know two different circuits have come in with positions that are intentional with one another again gives basis that the government's position w there is a legitimate basis for dispute on that question which is a separate downstream question from whether the one thousand nine hundred four statutes affected a breach you know what i think the government is the going to get itself into trouble of it doesn't bother to address the reasonableness of its position before the court of federal claims and this court in these cases i mean that's of the some essential ingredient the substantially justified question and you just can't ignore th that the court needs on any of these questions i also want to address and katie i think you may have answered this but there were there is a lot of detail that is new as of this morning to tell me there incorrect proposition of law that just because the court a court of appeals hasn't ruled on the position it is very for substantially justified and not we're not saying that that's always the case we're saying in a case like this where you're dealing with the application of a statute where the court that is issuing the same egypt and hat in the seminal opinion said that this is a very difficult question that involves application of the a mistake ability doctrine which is very difficult based upon the winstar supreme court decision which doesn't have a you know even a majority as is acknowledged to be a very difficult question and in that context the fact that there have been no court of appeals decision makes it reasonable to conclude that the government its position was substantially justified even though we lost  given that this was acknowledged to be a difficult question from the outset and no one had resolved it beyond that we're not second in every case there has to be a court of appeals decision for the law to be for a possible for a position not to be substantially about i also want to address the point the opposing counsel made with respect to footnote six of the court's egypt pinion where the court said apart from the substantial justification provision of the statute additionally court notes apart from the substantial justification standard under the statute we disagree with the the court that that would be a correct statement of the law that claim is did not prevail on every issue of would be sufficient reason they are prevailing party we do not contest that they are prevailing party what we will say is the fact that we did prevail on some issues which include the statute of limitations issue which includes foreseeability on the lost profits claims for the renewal contracts that does again give additional support to the conclusion that our position was substantially justified if one can imagine a case where plaintiffs brought one hundred issues and the government prevails on ninety nine of the hundred issues the plaintiffs could be a prevailing party they got judicially sanction relief but if the government won on ninety nine out of a hundred issues that would be relevant to a consideration of whether the government's position was substantially justified in the whole that's not exactly the point that the court was making  footnote six but i would say that the fact that we did prevail on some issues is again relevant to the substantial justification analysis cannot put in attorneys representing a client in a position in which he is carefully picking and choosing only the best possible arguments to advance out of fear that losing other arguments on which he may have a chance but up this chance might impact his ability to get attorney fees that would be a very very dangerous situation for this court second with regard to the issue of there had been no governing appellate case there is no standard like that in the equal access to justice statute on there's nothing in the statute that says that there must be an  point and as we have argued in our previous it was the government that tactically did not appeal many of these cases so that there would not be an appellate case on point so that plaintiffs section eight housing owners would be in a position where they face tremendous uphill battle and tremendous legal fees which they couldn't sustain especially under the pressure of the reduced rance which had much of the section eight housing owners throughout the country on the brink of foreclosure and bankruptcy finally the decision of the court of federal claims in this case did not address many of the issues which your honour's believe are the most important specifically the underlying arguments of the government as to the reasonable ness of their positions