ok the next case before the court is starry associates versus the united states i don't feel from a decision a court of federal claims case number one seven two one four eight needing exclaim extremely skilled attorneys or possibly of attorneys in that area can you think because i tried to think of other special factors and i have a hard time coming up with any will when i see it say that i for i think that it's for situations that maybe we should come up with here today or that the congress didn't come up with when they were promulgated the statute but it does allow force occasion and where there is a special factor that justifies a higher fe also is not in keeping with the runtime text of the statute itself if we look at section two a specifically which is the special factor provision what we see again explicitly stated is that whatever the special factor appeal that anything related to the government's conduct has justify or hire a feat the other problem with such an expansive reading of the statute is that it does not comport with what is the threshold in forty of the  failure to act by the agency upon which the civil action is based and as this court explains into following the nine hundred eighty five and the image of the statute by president reagan to include this language about the government action that the the court you can't consider it anywhere else two does not go that far but we see that other courts have the second sort of circuit has gone that far the fifth circuit has gone that far the d c circuit has got that works you're asking us to say that that it doesn't matter how bad the government's conduct was that that once we conclude it wasn't substantially justified then we can't look at that conduct for any other purpose under proceeding under subsection d the special factor exception does not allow for a consideration of the government of the government conduct as what the government's position is and that congress has expressly provided free dress there is a structure by which the government i'm sorry the court may consider the government's kind of act in a the amount of the fees and in doing so the court must proceed under subsection b that's not what happened here the court was very clear that it was proceeding under its analysis was being conducted under subsection d star it was very clear that it was proceeding in its application under subsection b do you believe that the bad faith that's contemplated under the relates to bad faith by the government lawyers litigating the case or does it encompass bad faith by the agency i think it's more closely is concerned is more concerned with the conduct or english ok so what you're saying then is that you know there is a difference between not substantially justified has recognized is there any remedy outside of this statute could a separate action be brought against the government or the government individual that was involved in say the individuals taking bribes and put aside criminal but would there be any civil remedy for stari under those circumstances i have an answer to that your honor i'm not clear on that but i believe what we're dealing with here and i believe it was the second circuit and  improper it felt the government's purposes were that it could enhance the number of hours that for which there was recovery rather than enhancing the peace assuming that there was those number for that number of hours and we certainly don't quibble with starry in this case about the number of hours that they claimed or anything of that nature this shield is really limited to this legal question as to whether or not the government's conduct is a sufficient basis the woman who small business the small business ties a story if a critical factor in this case we believe this case should be decided on a plain language legal access to nature of the entity involved the section subsection d of the wife as to justice act was set up by congress specifically to provide some relief only to small businesses a large business cannot seek any relief under subsection d only small business and it was a clear intent of congress that  more business litigated against the government and prevailed and the government's position was not substantially justified that in the middle the small business would receive so compensation for legal fees write and read and clearly there there is an entitle me to please here in the government it's not objecting to that the question is what when you say at a minimum the question factors or you already got the cost of living adjustment i said well the government has acknowledged that we're entitled to it although they haven't paid well i mean you know the good well it's  attorneys and it put in place a cap this whole statute is directed at affording attorneys and paid attorneys it's not directed at punishing the government for misconduct preview is whether or not the trial court abused its discretion the position is essentially saying that if the government not only disagree that that this statute can't  to punish government cut misconduct your theory sounds like enhanced damages or punitive damages to me in the form of extra attorney fees if you want punitive damages or enhanced damages against the government there has to be a clear and specific waiver of sovereign immunity against the united states i don't see that here i believe it is futile if you read this very treaty it says that the court may determine if special for actor adjustment clause which is about cost of living so that's an phrase you're talking about in context it looking at whether the attorney speech should be enhanced either because the cost of living increase is allowed or other special factors such as the need to hire specialized attorneys those are all directed at that the pain of the attorneys they're not directed at whether the government committed misconduct or nah there is no wrong in general application to litigation and they could now be affable to broad loog spectrum of litigation but that's exactly what you're asking for you're asking for rule that if the government's misconduct is  to us that that can justify an enhancement that is correct or honor because the government are you aware of any case where the supreme court this week for any other circuit court had to use a special factor to penalize the government for misconduct rather than awarding enhanced speeds because of lack of qualified counsel or the like could be some compensation to small business there is compensation that's exactly what they set up they set up you get this cap and these other adjustments well it did wanted to give you actual attorney's fees where they wanted to give you actual attorney's fees in the face of agreed just government misconduct they would have said that these special factors have to be read in the context of where they fall within the statutory language and they're talking about adjustments to fees based upon factors inherent to the attorney not to the government is there in the place in that statutory cap language that references the government misconduct the cold context of the statute is to provide parties with the ability to access the judicial system to seek relief it's not a statute intended to provide compensation or a remedy or a relief or a punishment and that's why it seems to be it's focused on of the the attorney rate the ca the cap is on the as a rate of the attorney fees and it's talking about what the ability to gain access to representation in order to avail oneself of the judicial system it's not rad logically does not limit itself to one circumstance but we're trying to understand what the other circumstances might be so let me ask you did you did you ask for a finding a bad faith under twenty four twelve b no we do you from filing in each application saying we're at least entitled to fees under d the substantial justification thing with the cap but we think the government's litigation misconduct or the misconduct overall was so egre should say you know are questions for congress stuff so we have to figure out what what congress actually said i mean there are lots of gaps there's lots of times when it seems that it's unfair the way parties who have to deal with the government are treated the question is what are the ram it is for that that they limited these particular factors of these factors are quote applicable to a broad spectrum of litigation so that is the or from the u s supreme court that's the only and egregious government misconduct very very good or distinction because medications are difficult i mean frankly the greatest frankly if you have a case where the government's misconduct is so egre ous that it's likely you're going to win and when it is the way it seems like it would be very easy to get an attorney rather than a hard case another significant difference between a factor of the court finds that the government was not substantially justified mostly because of rules mistakes and all mistakes in fact you should not be in and that would allow the government the government man misconduct by the government is not found frequently where they falsify declarations where they misrepresent facts to the g a o and to the court for claims that is very but i think the strongest argument it makes on the other side is the last one which is this is really really troublesome conduct by the government not the government attorneys but by by those strangers and the fact that it's not this is really up to me and it's certainly not up to the trial court to determine whether or not there should be some redress for government kind of the matter how unjustified no matter how troubling that conduct may be that is left to congress and congress along to determine whether or not there ought to be expressions enhanced rent or some sort of should give a vehicle by which a court made with its discretion assessed fees or assess actual fees or some enhanced myth and as a result of the government's conduct and the problem that we have with the transports opinion here is not necessarily the court's desire to make some sort of ethical adjustment it's the fact that there is no explicit waiver of sovereign immunity by congress for a court to do so and the point where and when presented with that challenge and look for chose to simply do so the congress clearly by setting a rate cap has determined that its policy goal of reducing turns for challenging and reasonable government contract is served by having a cat that you can have a rate cap and still determine certainly without any authority on point that it may extend what congress's express waiver of sovereign immunity two weeks to the sorts of circumstance you agree that that with their front on the and then also say and i'm awarding additional fees for bad faith bullshit they both are perceived both sections are under the aegis but i think that in order to award an actual fees i think you do have the court does have to determine whether or not it's proceeding with an an occurred here would they have to take depositions of all they did take depositions and they depositions in this case specifically on their claim that the government was acting in bad faith over the course of the performance so in the same way that they doggedly pursued a bad faith claims even though the court did not choose to take up that question and stopped short of addressing the issue in the same way that they took out the bad faith argument throughout the course of this litigation before to go in for the court of federal claims they certainly could have marshaled those same fac under the should we say but you should bend reconsider whether or not you were been better off under b you know you are we believe that that the court had its opportunity to consider the application that was set forth before and was there an application under be there was an application and b but i certainly are not supporting the notion that if unsuccessful under one application as a matter of law first of all they were successful under