to number two thousand and ten fifty one twenty six hall against the white men of health and human service specifically cited the language that said this was going to be limited as exception however that was prior to the united states supreme court's decision case actually has a statute and the statute expressly says prevailing market rates whereas this act as the statute says reasonable attorneys fees doesn't that the key difference between rates it's right here in the supreme court opinion of page five seventy five the difference there was whether the paralegal should be considered under the statute like an attorney but there's no doubt that the supreme court clearly relied upon but subject to an exception and the only way for you to eliminate the exception was to convince us that rich overturned or superseded that somehow throw a do you want to turn welcome to the pluck ability of the exception or do you are you continuing to argue that the exception is no longer valid after rich  i believe that the i believe that the supreme court made it very clear in richland that carving out policy exceptions because of whatever underlying reason and that in that case it was the cost of the paralegal  younger line cost versus the former rights is disfavored and i think the supreme court made that i mean made it as clear as they could make it the only way that you know it and let me just read the language of this court this costs and would prevent any particular claimant from receiving a windfall we disagree not heart of the government's argument and of the era that the hometown rule should always and that was rejected by this court was that the cost of doing litigation or the cost of running a law fist is less in out in some of the hinterlands in this country than it would be in washington d right that exception was in fact the same exception in originally it was you can say you got to it from a different from a different angle i really think that's a distinction without a particularly large that clear in the richland case and they said don't carve it said to this court don't carve out policy exceptions because of the cost of paralegals or the cost of running a law office or whatever it's still don't carve mean i mean i understand that that's that's already being considered i believe the supreme court's decision in richland was clear we'll see how his court decides that in this or in the see its case i know it's already present the next issue is ok we have this davis exception this is this isn't pertinent to this case but just for completeness of understanding of how to form rule works is it a one way ratchet or does it mean that if somebody from the lawyer from new york goes to jefferson county mississippi up my guess is that i mean from what the supreme court said you get form rights if it's a friendship thing to actually get form ranks ok and not now the only the oddly enough the only place where i could give you an example of that is in fact in the vaccine program we have a practitioner who practices in manhattan that has higher rates so in the in in this exception as i'm sure i mean i hope you where former aides got paid it was the guy from manhattan because his rates were either the same or hiring manhattans with the judge in fact really didn't have anything to to decide and in so you could say he got i want to not what is a very significant difference now the government complained or pointed out in their briefs that i supply no citations on on no in relation to this well that's because there are not this is not what we call a very well developed area of the law so there are special masters right now that are waiting on this court's decision in this case to know what a very significant differences so and there are few petitions of mine that are being held up right now waiting for that to be applying so waiting to know what the rule is so they know how to apply it i don't  know what is doing the bulk of the work that's been suggested that if we do trials in our trials here in washington d c that that's the most important piece of work that we do for our clients so maybe that triggers the that gets for a three hundred percent increase in his local rights for his formants and this court said that that is a very significant difference so if anything it is two hundred percent not i don't know i don't have  wouldn't make any difference hypothetically at a rate in your office and two x litigation of them washington d c does that make a difference i'm not i'm not sure i know in other words you sure one hundred dollars an hour for were done in wyoming and two hundred fifty dollars an hour for trial work done in washington d c and that's the agreement suppose you have a standard three hundred dollars if work done in china and but if i have to go to washington d c that it's four fifty jack which of those would be the right number for the special look at with respect to the question of comparing your race to less well and i actually haven't actually brought up laughing but i did understand the context your honor i don't i mean if that's the if that's the claims court judge in this case analysis that my rates were i mean they mirror the lathi rep matrix although she didn't cite it but sure i think that that's the cleanest easiest way to do it but i don't know but judge that the special masters have to answer or the claims court or this court has to answer i think laughing matrix is the easiest way to do it but just because i have a contract in this in this statute the way the statute set up the does not allow me to  i'm i'm i'm prohibited as a matter of law from contracting with my clients from my hourly rate i mean that's what it says that so i don't think that has a bearing on how i do that so i think the answer that question those actually it's los angeles d c or boston or new york good the special master look at your structural rates at that point and say there is a difference between local rate and a former  is but i mean they should look at all the evidence i mean the short answer is such sure they look at all the evidence but they ought to be looking at the evidence of what washington d c lawyers chart which is established by the laughing matrix i mean that's what come into that equation but that's that is in obviously a different question different question but i probably shouldn't even that waded into the levy quit yet but if you have found in the discussion with mr gage the issue of laffy rates had been raised i do think it's important for the court to recognize that on appeal he'll it here well the rates are not the issue the special master determined the local rate to be from range of two hundred  extent that it was developed in the c s which was also before the special master at the time and so the parties really relied before the special master on his determination and the c s to kind of develop to develop that you have to know with the last year it would be through for a lawyer of mr gage his experience i am not certain the range that was offered by mr gage initially was between three hundred sixty and four hundred dollars per hour i don't think that that necessarily applies to a two thousand and ten rate or two thousand and eleven rate but i think that that's probably appropriate range under the lathi it's important here that the special master found that laffey was not a relevant consideration and determining the allowed and a decision rendered by a special master there was some delay in the case because the case kind of pastor special masters i'm eventually at a decision was reached so this really has no similarity to what was really at stake or what was at issue so what the special master did then in determining form rates to get back to your question was to look at what other available evidence is there and what he looked at was evidence of other people practicing in the area in the d c area they're being paid to the program there he didn't find that the one attorney hundred percent was very significant but this case marks a pretty big departure from three hundred percent that's right your honor a very important situation in this case is the standard of review in terms of terming very significant it is the government's position that the question of very significant is a mixed question of law in fact and the reason is that you're taking a standard and you're playing historical facts to that and then giving a judgment call to determine whether it's very significant there is no  valuable way of looking at it is who is the better positioned judicial officer to make the determining well if you see a mixed question of law or fact you're saying the ultimate determination a very significant is law but there are some underlying facts what would be the underlying fa way and ultimately a court can overturn a trial as a decision as a matter of law when we're talking here about a percentage being a very significant difference i think are more ultimately in the factoring age what is the problem that in the fact remains you want us to that gift efforts right yet suppose two different magistrates both look at a fifty nine percent difference and come to the opposite conclusion that can't possibly be something you want us to that would be so unreasonable just and it's so objective it's objective and it would be so reasonable to do that so how could we come to the conclusion when two magistrates one says fifty nine percent very significant or significant doesn't seem that  and then they both come up on appeal to the us i mean that's the difficulty i'm having with your notion that we should give deference to a determination of what is or is not very significant for a surely quantitative in a little decision your honor your point is well taken there is the peculiar consequences of saying that fifty percent in one case is significant in the other case is and we affirm both of them why isn't that classif well i can't say without seeing the reasons that the special master replied not to determine that fifty nine percent was a significant difference or not of significance and perhaps there was an arbitrary and capricious nature to that kind of decision so the underlying weight of the special master handles the decision is an important element and here the underlying way that he handles it can inform whether we should give deference or not that's a sterile decision do we give it deference or  not doesn't shouldn't ever depend on the underlying manner in which he held it either it's something to be reviewed for substantial evidence or something to be reviewed dyno but i mean that's i doesn't fluctuate based on how good a job he did writing it up or how at right well your honor to to the extent that the court is looking at this level to make the determination of what is a very significant difference if you're going to come up with with an exact percentage there is some risk and involved in doing that now the first risk is that it would be in this case dicta i mean here there is no identifiable error at the special master committed when he looked at determining what is a significant very significant difference he looked at the cases that were available inside and outside the program in doing that there was a range from forty six percent to two hundred percent and of era when he looked outside the program   it could have been a three hundred percent difference i mean it seems like that's a difference that is some significance well i fail i have to get my calculator i think the way find it is find ninety eight over two hundred  significant you're saying the difference between three hundred percent and forty six percent and two hundred percent and forty six percent should be or all i'm saying your honor that the cases when the special master was trying to determine what very significant difference should be sick as a matter of law it seems isn't listening that we're treating it as a legal question well i think we've got a three hundred percent is very significant we've got to figure out where forty six percent or fifty over this it was right in between that if that's that you know impose with that question i mean the government would submit that a twenty percent difference in favor of reform would constitute a very significant difference and if i can provide some concrete numbers for that to explain why that would be the case if you have a lawyer a practicing lawyer who's billing say forty hours per week at fifty two weeks a year has received and let's say his local rate is three hundred dollars per hour at the local rate determined as a factual matter retirement to be three hundred dollars his receivables with that so forty times to do two times three hundred is six hundred twenty four thousand and attorneys an increase of twenty percent would raise his rate from three hundred dollars to three hundred sixty dollars  taught talking about receivables at the end of the year of a seven hundred forty thousand eight hundred dollars or seven hundred forty eight thousand eight hundred dollars so we're looking at a yearly increase of one hundred twenty four thousand eight hundred dollars ok that is a very significant increase in receivables at the end of year if you were eight partner arguing for an increase percentage you would say i brought in one hundred twenty four thousand dollars more this year are we said tiresome you're looking at very significant rate which is our belief or very significant overall billable amount because i read a veritas a very significant rate which is an hourly difference and isn't the what would be the total overall difference between the amount you would collect in a hundred hours the more this person one hundred dollars you sure you could say gosh we were he was really slow doing this case people five thousand dollars this right will that boy everything is very significant isn't it because even a look at is the better way to look at it because it can be kind of it's not necessarily dependent on a particular hourly rate you know a particular hourly rate but can kind of be cast a little bit wider if you look at twenty percent if you lower those numbers and when you look at rates we have here which is to twenty two to sixty four you're looking at a ninety one thousand dollar increase over the course of the rape itself it's it needs to be kind of given some flash it needs to become more concrete i mean is you know when you're talking about three hundred percent three hundred percent was absolutely an easy call there's no question about it that a three hundred percent difference is a very significant difference which is why this court concluded that they had no problem now again i am i think we don't buy into his friction argument then we have to review what's whether or not this melt is very significant so certainly explaining why it is or isn't wouldn't be dick your honor it in that regard i would suggest that the special master is exposed to cases from what we would consider high cost areas from boyer's practicing in high cost areas like new york and san francisco and l a at the same time they're exposed to the rates requested by wires who are practicing from what has when he said the former rates have never been applied and there was a case in august of two thousand and ten where special master battle applied form rates the case name is  in that case he was requesting three hundred in the part on the because it's like less than ten percent i can't give an exact i can't give an exact calculation on that because she was kind of she was using a range i mean it wasn't as quite a detailed fifty range so it's it was four comparing that to forty to the to sixty was not the appropriate when you look at it special master validated she had a two seventy five to three sixty range which which as i understand w a range of years rather than ability and confuse are you talking about our case now are you referring to different i'm sorry i'm referring to the case where the form rate was found human human that's correct and the reports are weak three hundred fell within that range which is different which is different here than the way the treated here and he found a pinpoint rate for mr gates now we need also to kind of get to based on the pinpointed grade here i think that there is this question is something i really like to hear your answer to it sounds like there's only a refined of all women when we can settle and agree on the rate to be applied to an attorney before we get into litigation so the fact that there are findings that you know look at the former aide a number of mr ages there was his partner and she had wyoming and they looked at the new york cases as well so it's not that there's not i don't think i get the impression that mr gates was giving was that there's some i have been asked by special masters in status conferences when this is going to come to a head so they will however i have myself the petitions pending that are suspended waiting for this court to rule on profit margin seventy percent is overhead they have no idea what numbers you're talking about the justice department doesn't pay their own rent it's an absurd argument it's offensive  the other thing is and this is just this is just important i mean to say that i can get former rates which is the general rule it's cruel it's what's supposed to be a plot ok well i can only get them if that if that's what if the judgment of this court comes out to you know seventy percent increase sixty percent whatever whatever you come up with we need that rule whatever you come up with i should be paid the amount of money that the gets me true to my former rights that doesn't offend the rule that's that would actually be a workable system that would allow the general rule to apply instead of always having the exceptions swallow up th