don't want to be here and we shouldn't be here the rules governing the shifting petitions are well established by the supreme court as well as by this court those rules established that the lodestar yields a fee that presumptively a reasonable attorneys for those cases establish that it is the petitioners burden to establish that lodestar market rate how does a petitioner go about doing when the petitioner cannot enter into a peer greenman with an individual client i meant to the case law is clear what the attorneys receive from fee paying clients in non fee shifted litigation is the market rate and if those attorneys have no fee paying clients then they can submit proof of what similarly situated attorneys for similar work in the geographic location the claimants attorneys here have not done th the case was clear that the claimants burden in this case would not be satisfied by the claimants assertion of what they believe their hourly wage should be it's not satisfied by prior feel wards when those feel wards are not based on a market analysis or where the fact finder did not determine a prevailing market rate and that burden is not satisfied by resort to the surveys like the op men and while survey when the survey covers a broad geographic area covering urban as well as rural areas covering all areas of pregnancy so in this case let's let's try to be a little practical and i think that might help the analysis were you have only one attorney doing this kind of case or one firm doing this kind of case like one representation in the state what how does that attorney then establish the market in virginia well there's two responses to that question first there are a limited number of attorneys who practice in this area but it is not one firm but even if it were the rate for black on litigation is not the market rate the supreme court has explain that contingent fee litigation or awards from contingency litigation like this cannot set the market rate it would be entirely circular so the attorneys have to look to what pain clients pay other attorneys in the same geographic location there are multiple attorneys who practice in northern virginia who practice unwise for ginia there are multiple counties surrounding the area where counsel practices so you're saying then that the attorney can look at what other lawyers in that area get let's say to represent business clients and breach of contract suit or out to something that would have nothing to do with with black when litigation let's say real estate birders an acquisition i think comparable would be perhaps social security cases worker's compensation cases some type of litigation that's similar to the type of litigation that's presented here i'm not sure that you can hear us here for workers compensation excuse me what's the piece structure per worker's compensation i don't know the point is that it's the claimant's attorney's burden to establish that we countered and in chicago doesn't have the same fees structure or command the same fees as an attorney say in northern virginia or in grundy virginia so if you're from going to be jenny and you go off to chicago and whole for representing this particular in this particular matter so it's the amount of fees that they have for gone by doing this representation and then once they when they're compensated a reimbursed for that lost opportunity or for the opportunity that they had it's not a wind farm and the case law has been clear that if an attorney can command a rate of one hundred dollars an hour if an attorney from chicago would come to grundy for example or norton and their training in chicago he has an hourly rate of three hundred sixty five dollars an hour but the attorneys in northern virginia have a rate of one hundred dollars an hour that attorney is going to be the chicago attorney would get one hundred dollars an hour not three hundred sixty dollars an hour the attorney's practice here i don't know the answer to that question which is why the burden is on the theatrical to produce that information how do you deal with hard cases brown and holiday where we said that it was appropriate in a harbor workers case that the board generally can look to previous awards in the relevant marketplace as a barometer for how much toward counsel in the immediate case so why didn't we in the context of  longshore and harbor workers approve exactly what was done in this case but there's one piece missing and it's not answered in brown first because i don't think that anyone disputed it in brown but the missing piece is whether those prior fiords were based on a market analysis and so the relevant case would be cox the relevant case would be the supreme court's decision in produce versus cannie eight we the courts discuss right why didn't incur student we say that the analysis and so look at the fee petitions that mr wolf referenced in this case although not submitted he referenced one of them included the decision that was reached in cox itself that the court this court vacated those the awards predate cox they predate kenny a they print date most of the cases they talk about what the proper standard is if the courts had conducted a proper market analysis in any of those cases they would certainly be relevant but the claimants council hasn't produced those people titian's and the claimants council who are marketed now determining what fee paying clients pay for similarly situated attorneys in the same geographic location to identify the prevailing market rate for attorneys in their geographic location block long case in in any type of routine civil litigation and as the courts and cuts you could go outside obviously the breath on where there is no fee paying market you could go to social security you could go to other workers compensation or routine can the right take into account the fact that an attorney fees in criminal case oh that would be up to the finder of fact whether they would regard that as comparable you're saying we're representing somebody on a murder is comparable to representing somebody on a black lung case i lawyers do mostly civil litigation i believe they do mostly agency litigation this is not just for this case i don't want to let it go you need justice here particularly but it's also a broader brush than that if you normally do criminal  qualified because criminal would i don't know the answer to that and i suspect not but it would really be up to the finder of fact what workers comp you don't have fee based clients do you in virginia i don't know the answer you don't know i know you know so what's the market you don't know that it's workers come to know that if you do you know whether you have faced p bass clients and in virginia in social security there are fee based you know that ok so other than social security you're saying it's just the general civil practice that would generally be where fee paying clients would pay attorneys to represent plaintiffs you know what you know is bothering me about this this is that the practicality it just seems to me that if it's the  body that has the expertise is the the tribunals that hears these cases again and again and again and they're the ones who know what these cases are worth and it seems to just make so much more sense to have that be the prior fees reflected or be determined by somebody who knows what's going on rather than somebody who's doing a mergers and acquisition or somebody who's defending in a employment discrimination suit it just it doesn't really make practical sense could you answer that yes because nobody is removing the authority of the administrative law judge or the benefits review board for making that determination but what well the attorney performed or how many times that the judge has seen that particular attorney the supreme court said a lot of things and one of the things that stands out of the proceeding should be a second major litigation and there's a limit to which we can simply script the number of steps and hoops that you have to go through to a certain point in time where you interfere with a fact finding function claimant has planned its hopes on is the avoidance of the second major litigation but that is a litigation of counsel's own making because he had counsel simply produced what attorneys in his geographic location are paid by fee paying clients we would have to be here we would accept the act and the court wouldn't have to decide this case but over and over and over again what we find is counsel relying on prior fee petitions that may please the court my name is ryan gilligan and i represent the respondent this matter this case concerns the word of attorney fees issued by the administrative law judge in the benefits review board which this court reviews honor and abuse of discretion standard into term and whether the judge erred as a matter of law the field words below are reasonable and accordance with the law and supported by the specific facts of this case the petitioners primary contention challenges the hourly rates awarded and i'd like to first address that issue the educators below followed the lodestar analysis is found in the regulations which is set on numerous factors to arrive at a reasonable cox that decision said that we could submit evidence of fees received in the past is evidence to establish the hourly rate in this case what we did was submitted and i agree with petitioner one of those awards was was vacated that was the cox decision but we submitted twenty twenty examples of similar hourly rates by six different ministry of law judges who presided over the case over a period of years and we set that amongst other  factors to determine the hourly rate in a specific case i don't believe it's static that the hourly rate is a static figure but based on the evidence presented to the ministry of law judge or the benefits review board it was their determination to make as to whether that fee is reasonable for the representation which takes into account the other factors including the qualifications in this case it's in this case mr wolf who's the lead attorney has over thirty five years experience representing black lung claimants i don't know of anybody in the country with that type of is to find a similar case with the delay in payment with the contingency nature with with the complexity of these cases is very difficult market we felt that the market based evidence was the decisions in the past and we submitted a survey of the region of the hourly rates and i disagree with petitioner that our practice is confined to where one of our offices is we have numerous offices but our practice of representing coal miners is pretty much at a national state at this point but it primarily is virginia west virginia kentucky eastern tennessee and north western north carolina so it's a regional based practice and as the administrative law judge noted the hourly rates we requested were below the median range for the south atlantic region so we tried we offered to the judge and the judge accepted based on the facts of the case we've consistently received these awards and given the fact that there is no comparable litigation social security is a contingency based our firm also does social security and it's a you get up percentage of the of the  back pay and worker's comp is also generally a percentage based system so this by looking to the private previous awards in this case the judge again the barometer of traffic case for five hundred dollars and you could do it in an hour if you're in and we have evolved i mean this is one of the first the petitions we submitted after cox and we have evolved with us my question why did why didn't we because we believe we are following the cox decision by submitting evidence of what we received in the past which was also in the being versus bentley in the six circuit and we also cited to it the seventh circuit decision which also looked to the prior feel let's give you an example one of the cases you reference is the very case that obviously was overturned what did you do differently and you did in that case what we did is the case was remanded back to the ministry of lodge and we did exactly we submitted evidence rate when you don't have clients so i it is consistent with the six circuits decision so i don't i don't believe we were asked that was our interpretation of cox and that was a panel before the benefits review board  and ministry of lodges was up at this point contra to petition and we haven't sought to overly extend this litigation is the court can see from the record this was ardently challenge case this is a rare form of black lung disease to it is a factor in the rate but yes it does go to the hours and the hours have been contested in this case which again use a quarter hour billing was found in the regulations and we feel we believe that the proper standard is i'm not specifically aware of what the paying based attorneys in my region charge but i do believe it would be too low because this is this type of litigation we only get paid if we're successful and the black lung  is not known for having a high success rate and you know as i mentioned it the onset of this argument that this lodestar system was developed to encourage attorneys to engage in this practice and the type of resistance we receive in this case this case was found two thousand and five and we haven't received anything in compensation and so to be able to stay in the market to be able to stay representing minors we have to be compensated in a means to keep our practice going so it's totally different as as the petitioner they get paid for every minute they spend on a case i don't know their hourly rates they they don't release them i'd be interested to know them but when we only get paid after an extensive lengthy litigation that is that different determines on how far the appeals process wants to go average case this contest is at least three years and can go over ten years as many of the cases that end up before this court this case the issue on the merits was decided well over a year ago and we continue to litigate these fees and we remain on compensated for our work so of it a a local attorney who is getting paid immediately it's a totally we believe it's a totally different system and that's why we submitted the fees that we've been consistently receiving by judges familiar with the type of practice that consistently awarded each one of those decisions was determined by a judge to be reasonable it is a niche practice there are few practitioners taking these kinds of cases we take probably without question the largest number of minors in the country and as we cited in our brief the two nine indicated that minors are still having difficulty obtaining representation in these types of cases because of the simple fact that the lid the litigation is so lengthy that attorneys can't stay in business they can't they can't receive compensation so to the evidence that the employer that the petitioner wants us to rely on is whatever is the lowest rate and in this case they've cited district director decisions and they want to say the market rate is whatever the lowest rate is and they want to bind us to our specific city were our principal offices but it's a regional practice and that's why we tempted to the site of the factors in this case and in candidly given this court's decision in cox we thought we were following the law and the adjudicators below grade furthermore the amount of hours extended in this litigation given the complexity of this unique issue is not excessive at all and the judge subtracted a large amount of hours nevertheless compensation for the number of represents this is just after cox and the fees are now is ardently contest that is the is the merits of entitlement and it's becoming i mean the field becomes less smaller and smaller and smaller to take these types of cases because it's virtually impossible to re brissie compensation the cases have to be a either exhaust appeals or they at least go to the benefits review board it's a very very difficult system and it's not one that a a lawyer can just enter and understand these medical issues in these this complex regulatory system i wouldn't compare it to the average practice occurring in our specific county or offices is located are you counting or scott c now based on the same evidence we're offering in this case but we obviously could have offered it we couldn't change the record if you ever tried to get requests how much the coal your honor i believe every one case where it was it was the the the claimants representative file discovery wanting to know what the petitioners law firms receive and that was denied getting paid for every minute of every case no matter what the outcome where it's totally contrarian are an arse and are on our side of the of the fence i would i would you know i think that it's absolutely probative evidence for the court to seek what the petitioners attorneys are getting for the same work in this case this law firm entered the case after the ministry of law judge awarded benefits and so began this extensive appellate appellate process  we believe that the extensive litigation that's been performed in this case was compensated by the judge at a reasonable hourly rate for a reasonable number it was in in accord with the court's decision in cox and the being versus bentley case in the six circuit and if there no for the further questions from the court rest three points first risk of loss is not to be calculated i figured into the hourly rate the idea is that counsel who are taking on contingency cases will screen their cases and bring  cases but risk of loss is not a factor the supreme court had said so in no uncertain terms nor is delaying payment especially we are counsel requests their current hourly rate so they're getting paid for the delay in payment second if prior field words are relevant then this a l j fail to consider all the prior the awards the employers council submitted numerous fee petitions which show that the hourly rate that other attorneys request to practice in a similar field was far less than the three hundred dollars an hour requested by mr wolf far less than the one hundred dollars per hour requested by the legal assistance fifty dollars an hour was the rate that was awarded for the legal assistance and mr wolfe's fees range anywhere from two hundred to three hundred mr gilligan's fees range from one twenty five to one seventy five the judge provided no explanation why he rejected those other people titian's if those prior people titian's were relevant so to the extent that they were based on a market analysis that explanation was absent here and third with respect to the fifteen minute intervals counsel bil fifteen minutes for every piece of paper pieces of paper the minutes for a letter that said dear judge this is to inform you the change in council for the director while the appeal of this case pending before the benefits or you were the director will be represented by an attorney from the washington opposition billing who are our anchor mums the regulations say that council made bill in court around increments but those regulations also say that the fees awarded are to be reasonable when a council bills fifteen minutes to do something that should take one minute thirty seconds or two minutes the effective hourly rate for that work is not well archer simming know that the council did counsel created a will i know that don't you don't you go have other work that you have to do sometimes in relation to something in other words when you're on a quarter hour billing or a tenth of an hour or whatever you on this issue yes and that's why the court should if he doesn't deny the petition because of the failure to establish a market rate it should return the case to the administrative law judge to do the judge's job that wasn't done here the judge didn't explain why he rejected the proof that was submitted by the employer's attorney with respect to other fee petitions if that's relevant the judge didn't determine the prevailing market rate the claimants council did not chord with me congress has you know has passed this program and presumably congress wanted deserving miners to receive not dispute any eastern associated coal corporation will gladly pay a reasonable attorney for claimants counsel who succeed in obtaining benefits for their clients but we do have the