good morning your honor my name is michael bernanke you may please the court i would like to keep three minutes of my time for rebuttal and your own time thank you i am representing hartford life an accident insurance company and the oracle long term disability plan for the appellants in this particular case i realize i want to start off by noting i realize that the benefits in dispute in this case aren't that great they're only thirty six thousand dollars however we also have a two right that is driving the change in the train chronologically i've what i would like to do is talk a little bit about the social security award and then get to the attorney fees if i was unusual to that and i think that  the district court went through the factors and said under these circumstances it i think it's i think it's admissible what's wrong with that i mean if he did if he hadn't gone through the analysis side i feel differently perhaps but i think it's two things one i think that if the time the district court admitted it there was insufficient evidence to establish a disability the case had been tried the evidence and come into the record and simply coming with after acquired evidence to try to change the outcome of the administrative record is generally frowned upon by the ninth circuit and no patta when the defendants tried to do that when they tried to show surveillance videotape of an individual working that showed he wasn't disabled that wasn't part of the make to which is we have the social security award in front of us it's part of the record the court can look at it the simple fact is this all security award was used as a tie breaker and the security word itself doesn't provide any evidence upon which the district court could have basically utilized it to award benefits to mr naggy because the entire record from the social security administration was not submitted if you look at what i thought what i took to disregard to be saying is that here's another body with a higher standard for disability and there's been an adjudication i would argue that that's if that's the case i think you're right he said they arrived at this conclusion but he didn't go deeper and i'm not sure that that is a proper analysis under the novo review under a risk the simple fact is the social security judge said look at both of our doctors have reviewed mr nagesh records we find he can work in a sedentary occupation  i believe he can work in a sedentary occupation gainful employment so he's not disabled up intel age fifty but up until age fifty the social security disability rules change he has to base it he can't transition to other work so we have to show basically that he wasn't able to do his past occupation of a software controlled person what the court did is he took in evidence from a vocational expert he apparently and i think that's in the record i could it asked him a hypothetical question which that a vocational expert answered to the court satisfaction in that mr now he can go back to his past related work the problem i have is we don't have that testimony we don't know what that vocational question and hypothetical question was so you have the district court just simply relying on the administrative law judge that mr naggy was not able to you know work as a quality control unless for oracle corporation without any kind of in depth analysis and in contrast to that what you actually had was hartford having four different medical reviewers say he did have the capacity to continue to work in his occupation you had evidence that came out during trial which showed that mr naggy actually reported to his treating physician for the first eight months of his while he was out on disability that he was doing fine it was only after hartford contacted him and mr naggy contacted mr pathways attorney that mr naggy went to his treating physician asked to have disability forms filled out and said and started complaining of fatigue depression things of that nature you also have the fact that for the vast majority of the claim the only individual that was certifying mr naggy is disability was his treating physician dr early two different doctors halt dr early and he reported to both of them basically that his findings on exam were sensually normal physical exams were essentially normal these were all based on mr naggy self reports so you weigh that evidence it's a tie breaker is the first question is whether it's admissible the court went through an analysis and concluded it was admissible so let's take that ok if if that was proper under an abuse of discretion standard then is there enough in the record to support the ruling that there was that the negative was entitled to own occupation benefits i would argue no because at the end of the day if you look at the entire record the decision comes down to the social security award and the social security award comes down to a vocational expert's testimony that we don't know anything about i think that if you're going to say how do we know that the district judge wasn't convinced by the treating we don't really know that that's how the district has looked at it daily well i mean obviously the district in fairness the district judge to go through and talk about dr early and spend some time on their side so you're right i mean that's that's the gist that is my spin on it i think my spin is correct if you actually look at the record but that's why i would like reviewing this for clear air aren't we well as it is i've been in front of this court before and when i make that argument they point out that the administrative record is the administrative record you're not weighing testimony or truthfulness they have the same documents in front of them that the district court has in front of it so they can basically look at these records and see if there was a clear but i'd like to pivot a little bit to the attorney's fees because you're right that's driving the boat again we would not be here over thirty six thousand dollars in benefits but as soon as mr pathway raised the social security ward or mention the social security award at trial i knew at that point in time given what's happening with these arista cases and the amount of fees that are coming out that there was this could be a potentially bad decision if it went against us and i think the problem i have with the district court's opinion is if it was going to consider the social security award and if it you know i believe it was just positive but that's fine so the court awarded out its warded the benefits we would have paid the thirty six thousand dollars but then what happened is there was a fee claim for two hundred eighty thousand dollars and i think the court failed to consider and i think this was especially the magistrate judge that at the time we made the decision i think even the district court would say it was correct the simple fact is there was this later acquired social security disability award that changed the district court's opinion or at least gave more weight to the to plaintiff's case that we never had a chance to see that wasn't even basically it wasn't even actually created at the time we made our decision but the don't you in your attorney's fees argument don't you have to challenge the number of hours or the rates that were and you do in your briefs to do that but didn't the magistrate judge in some detail describe the hourly rate i mean the magistrate judge i'm looking at page four the r n r says judges in this district have awarded mr pathway six hundred seventy five dollars per hour one then refers to a recent decision where he got in a in the linen case that amount and there's several other references to this amount as being reasonable in that district for this type of work a bound by those findings that's why we took this up on appeal that's the problem we're having with this the district courts i think want to cut these fees but they're looking at ninth circuit case law and ninth circuit  whatever they claim you can and you can basically if you give them their hourly rate as long as they submit supporting declarations and unless you do a really detailed analysis the most you can cut is ten percent now but but the magistrate judge again referred to judge or awarding mr pad where six hundred fifty dollars an hour in the james case and and then there's the attorney perle who submitted the declaration saying that the rate for this kind of work is six hundred seventy five dollars it seems like a lot to me but isn't the record substantial in terms of supporting that is a reasonable rate but the ninth circuit also says you can give downward multipliers an unusual cases and i can't think of a more unusual case when i believe the nih the insurance company made the correct decision and then evidence that came in after a trial essentially change the courts might but we're going to have to be unusual based on poor performance that his performance was worse than the average that justified this rate well i want to get to that but but i mean i don't think so i think that there's a variety of factors and again if you recall didn't contest the rate with evidence was that you did not contest the rate was competing evidence i mean usually when you're fighting hourly fee you come in with counter affidavit saying no no no the prevailing rate is not sick six hundred seventy five dollars it's two hundred fifty dollars  and i understand that but in the northern district of california we've lost that argument basically i mean if they are getting what they are getting basically and it's just it's perpetuating itself and ideas are going to correct that if that's the evidence of the prevail the standard just prevailing  rate and the evidence is that's what the prevailing rate is here which seems high to me i agree churchillian but that's rebelling right what's the problem well i think that if sometimes you can give a little bit more guesswork into these attorneys fees claims you're going to say  less of these cases ending up in the ninth circuit if somebody has a thirty five thousand dollar case even if they think they only have a twenty percent chance of recovery they're going to generally hold out because they could potentially get three or four hundred thousand dollars for that case if you can bring guesswork back into how much they're going to get in attorney's fees it's going to actually effectuate the purpose of a risk which is a low cost efficient mechanism to absolve these disputes and one other thing i'd like to point out one thing we did point out was we did focus on the quality of work you know i think what happened is that social security award masked you know the fact that judge gilliam did took the laboring war and did post of the work i think we pointed out that you know he mentioned dr early thirty times in his opinion pathway mentioned three times and i'm not sure he cited to it we pointed out that he spent three pages in his opinion mentioning our medical reviewers mr pathway didn't mention the medical reviewers or give any analysis to them to them at all and if you have just to emphasize what i'm saying if you look at the briefs in this case i fully expect if we lose to get an attorney for the claim of about one hundred thousand dollars all mr pathway did was mostly just quote from the district court and the magistrate judge so it's reasons like that is why we're appealing these cases we need some relief somewhere or we're going to have to keep on litigating these cases and what should we do if we agree with you so say we think that attorney if he is too high should we set a rate ourselves or reduce the hours ourselves or do we need it what do you think should happen well i would think that you would you know i think probably the district court would probably the most appropriate person i mean obviously if you guys even if you believe that you could set the rate i think that's fine but i  remember be the most appropriate don't we already have you know what's going to happen if we remain and i mean we've got all this information where this lawyer has gotten six hundred fifty or six hundred seventy five dollars an hour now the hours were cut down somewhat by the magistrate but the rate as judge thomas says you didn't really contest that in the bolo i don't you bound now by the record in terms of what was a reasonable rate we did contest it based on the quality of work you didn't file any declarations reflecting what a reasonable rate would be did you i believe we filed our own declarations i don't think we got any declarations from an expert basically i think i wan good morning i'm lawrence pathway representing david mr nagy was working as an engineer for oracle yeah great job was making lots of money and had no motive to want to go live on disability and fact once he realized that he couldn't work social security have an answer while it does not bind of the district court yaz of substantial significance in a nervous a case and i think the best reason in that case was the social security decision after the decision that was being around so if you have any case in which it was yes well i don't have any in the at the circuit level there are two the only opposing authority which i find kind of interesting because the founts reply brief describes it as a sweep of cases but the only opposing authority in which  social security information was to nod is the full scase which was in sacramento and there it was denied because what was a law for it was the notice of decision only with no information about what the findings were so if there was an administrative term arranged in that case nobody included that part but it's not a big difference between a social security decision the three hundred before or during the administrative proceedings on a wrist and one that's rounded after in terms of its evidentiary way and the idea is if you've had a determination by some security administration that there's a permanent disability and the person can't find a job anywhere in the united states economy that would bear on a and arrests administrator decision on the other hand if you don't have the decision in front of you there's no way it can affect that decision as well that's true and that's true any time you have later evidence that's brought into norris a case and that's limited but there are exceptions and that's not out and they opened a case in the context of the noble review and that's what the district court cited and district court actually did this in stages the first thing it did was that they asked for us to bring a motion to have it admitted and at docket sixty six we filed our brief in support of admission and did it as an offer of proof and so we offered the proof that the social security administration but it says in dated january twenty eighth two thousand and fifteen when we talk about the findings but the important part is he mr nagy requests the court to allow him to submit the notice of decision dated january twenty eighth two thousand seventh's outside the administrators record and the entire social security administration claim file and was there no transcript why why are we missing the testimony or present counsel with discussing about what the hypothetical was and what the response was why do we not have that  don't admit anything but i'm sorry do you just spewed his statement that we don't have a transcript of that testimony by them occasional expert no i agree with that so why don't we have that well we offered it it was opposed to the fence did not raise the issue of you can't take one without the other until we got here obtained both now i should say a couple of things in that respect this case was briefed for a judge who's very experienced generous and after the final briefing w leading to is he took a lot of time and care through this so you know once we brought up the social security were to trial then he had us bring a formal motion where we offered both the award and the playing file i just think that's a better way to do it the defendant would have it would have to be abuse of discretion so one of two things the first one was whether this fell into one of the exceptions in the opa case and the judge issued a written decision on that and then he said well but this also has to be necessary so i want some sorry asked for a separate briefs on the question why are not the how he way that and why he decided to to admit it so i don't you know you cannot if there isn't a case where you can't do more so maybe it is appropriate to take the decision but not claim file maybe you want to look at the decision first see how important it is and then if you want to go back and ask for more so you know without knowing anything more than what the word has said the proper factors were considered can i ask you about the attorney fees sure so i don't understand how you could possibly be entitled to the post suit administrative proceeding fees at least that piece they've challenge i don't even see a response to it in your brief and all your brief says is that the magistrate judge addressed everything but that that issue was raised in the magistrate judge did not address it so what is your argument on that point and why should we consider you not to have waived it so let me  make one preliminary point the fees do not just relate to a thirty six thousand dollars own occupation claim we have to win on occupation claim in order to get to the any occupation claim which we have raised that's been denied we filed suit and it's under submission in a separate case right not this case so so were the administrative proceedings i understand that one there's sort of a precursor to the other but given that we've got two cases this administration proceedings that are about to any occupation r r r three suits to that suit to the plan administrator and that can be done either in a way where the case is kind of kept open read i understand that but that's not what in this case there are two cases so we have our case here about today there's another case in which that's about any occupation benefits and the proceedings administratively about any occupation benefits are about that case so how are you not pretty suit to that case and that's not there are a number of cases i'm not sure why that's not in their brief but it but peterson versus continental casualty in the second circuit and i know  transcript judge  basically the same language has been interpreted so that you don't start to collect attorney's fees until after you file your claim but the plane we file is for long term disability as far as i can tell in your place you have like two sentences of argument about attorneys fees and they don't mention this and i'm really struggling with how when they make at least plausible arguments about whether you're entitled to all these attorney's fees and you say nothing how are supposed to and what about the issue that they argue that you should get your fees that were six hundred dollars an hour instead of six seventy five because that was your rate at the time the work was done well of course under the case law which is cited  hundred dollars right and then added the interest to it it would be a pretty close to the same number i mean i haven't actually done a computation but it's not that much difference but the recognition by this yes there is that use of current rates instead of historical rates is discretionary with the court and the purpose of it is to provide compensation for the on page eighteen of the magistrate's report and she's docket one forty six right now i understand that i'm just saying where is that in your brief and i don't think it's or no i don't i  i'll give you two nights and you put in on us on the clock thank you i would like to just go back when you asked whether or not the district court's mission of the social security awards is abuse of discretion or  to the fees because that's again the that's what's driving the bus if there's a lot i mean i understand that there is a formula that the ninth circuit has adopted that all the circuits have adopted that describes how a plaintiff's attorney is supposed to get fees in these cases however i do think you're starting to see a lot of manipulation of that formula and the response seems to be there's nothing we can do about it as the court district quarters an appellate court because they did every they checked all the boxes and i think that's what they're supposed to do that's what they're supposed to do apply and i understand that and that's why we're taking this to the ninth circuit because i do think this circuit what do you know  change the formula i don't see i don't see any basis in your breeze for tanker being with how we approach these cases on a formula basis well i determined to find the find reasonable hourly rate prevailing right find the number of hours gauge the work that's that's work that's we commit that to the district courts well and he said this is all going wrong that doesn't give me a rational basis to say ok let's not let's not get fiords in this case you know and i understand that but i do think that the ninth circuit again it said you can in unusual cases have a dot downward multiplier in this particular situation you had two different unusual things you had the social security award that mr pathway didn't provide for two months he certainly didn't tell us when the social security administration had denied his client's claim in two thousand and thirteen or when two doctors basically did i found he could work and then you also had a situation in which  application in this case i felt the magistrate judge didn't think she had the authority to do that that was the problem and so i i what you're asking for is a ruling from us that you can give any kind of downward multiplier that you want and that you need to evaluate the work to determine that that's what you're asking for no i think i would i would say you can give an appropriate downward multiplier and you've got a base you've got to explain the reasons why and i do think courts are reluctant to give downward multipliers i unusual circumstances and i think it is hard to explain on appeal it's hard to explain to people why you give a percentage downward multiplier across the board don't you think the district courts have that