versus department of labor a those get into those when i hear from the department and the government but yeah this is just crazy basically some of the stuff and that's just m is the same law that supreme court and we have announced and applied in section one thousand nine hundred eight federal statutory claims yes we believe so ok ok and we believe that delight and he said no wait stop delay is compensated for either an adjustment of the historical rights of the consumer price index or back current rights and in that case it was the current right let's move on we compensation which is provided for by the supreme court decisions we're not looking for the enhancement we're looking for just our compensation and a reasonable fee which as you know the position is compensate for legal research actually we legal research was compensated for some reason when i did it at one hundred percent and we put this forward in our brief for some reason compensated know fifty percent when my partner did it although we did the same legal research with both tourney's and as judge morgan knew since he had no way tried the case this is not a situation where there was a first chair second chair so each took separate witnesses it's very clear that the breakneck pace the depositions required us to each in the perform independently and i might add that the what the court might  aware of is the breakneck pace of the depositions was in part caused by the discovery abuses by the camp counting which forced everything to be backloaded against points that matter morgan doesn't compensate us for me briefly my partner in the car on the way because that's all the time we had yes but that's arbitrary my suggestion to you and i think some of this could have been done more sampling you don't have to impugn the other side's actions to say that there was such a bright net pace of depositions regardless of one that we couldn't didn't have time to brief each other and the only way that my i just would like to keep as much it's their fault their fault out of it as possible because i still call me an optimist and i'm not call that often i hope the child can work this entire mess out but from a delay in payment and how do we did it what alito said in that case for the majority of was that we don't rule out extra enhancement for delay in all circumstances but particularly where it's caused by the defendants but the way that she usually hand is either current rights are you time adjust the rights over time using the consumer price index which is much more complicated and subject to dispute and the current rates are close enough for government work and it saves everybody a lot of problems he didn't say when he said particularly when caused by the defendants he didn't say only one calls about the defendants it's just not just and proper to pay somebody using old rates with no interest no income or anything else all these years later i just that sounds s discretion to me standard is it is at discretion coincidentally then i agree with them because it shouts it's an abuse of discretion to me now i'm just speaking for me but i mean suppose this you've gone on for twenty years and i hourly rate that you were i'm sorry and the compensation you were giving them was worked out to be seventy cents on the dollar are you saying that's just their hard l honor not saying that but what we're saying is that the guidance from from purdue is that you need something in addition to that's not what it sans says how it's usually handled when there's when there has been significant delay and there has been significant delay in this case not caused by the defense particularly when calls about dissent by the defense not see if this is one of those unusual cases in which an extraordinary outlay of expenses or conduct by defense can you how can you misread that case that badly what you debbie clement did in that case which i've never seen done before is it compensated amid current rights which pretty do they just hailed was one way to take care of delay fully take care of delay and then he said however i don't think their current rates have kept up with inflation so i will give them a fifteen percent boost over and beyond that that's not what they're asking for in this case and that's not what was rejected they're just asking for current rights not current rates plus fifteen said was wrong was the plus fifteen percent well and also remanded to the trial court to decide if there if the exceptional delay justified the enhancement that's what what the decision says in our case here your honor that the fee counsel be and we're at a rate of two hundred ninety dollars per hour along the way each step of the way they have been awarded higher rates of fees by the a l j and they are being the current rate that they were awarded in the last decision is four hundred fifty dollars per hour that is a hundred seventy five percent increase over the rates they originally charged back when the case began but the case began ten plus years ago yes so you're questioning that that delta and the rates over the course of ten years in ten years at your current rates how happy would you be of course you don't want that to happen but pro do bostic both say that cases understand that there is going to be a delay in payment if you go before the anyway we ordinarily handling his pop paying him and current rates let's let's move on to another thing i was shocked shocked  went through and said these are areas where we should cut and the cut various things from multiple reviews of multiple attorneys at depositions conferencing now no they bill for reviewing and revising and they did that too and then i am j turned it down because under board president you can't be compensated for any time for reviewing and revising and i understood the justification to be that in private practice you don't get any time for reviewing and revising you've got to go with the first draft i don't believe that's the that's the well what did the decision m revising now revising isn't discussing it with your co counsel noah but i believe there were at one point the mention that there were like six or eight visions of the briefs and the a l j found revising but not unlimited i believe that's correct your honor that's what we would argue we would also argue that they all j looked at the total body of work and decided that there were cuts that needed to be made there was even at one point  sorry both council went total together to twenty three hours per council so the a l j the trial court in this case and the ala j is the one who does look at all these things particularly and does decide and the standard for review is abuse of discretion how is it not abuse of discretion to determine that legal research done by mrs marks is going to be compensated at fifty percent i understand that paralegal research is appropriate on certain things but certainly attorneys i'm sure you will acknowledge to legal research and analysis so how is this besides arbitrarily assigning at the discount to her are other than that how was this determined that the research she was doing at that time was paralegal research there was a considerable amount of research done it wasn't based on sex it was based on the judge's view of what needed to be done i'm not suggesting it's based on sex i never said that it seems somewhat arbitrary to determine one person male or female an attorney who's doing a legal research without understanding what the research is and why that cut was made so that's what i'm trying to get at is what was the research and why was it cut i don't recall what the specific research was there were several areas where research was reduced but the council was compensated for it by and large most of the research the did the original fee was request was five way through are the rates of the attorneys they're both partners they don't have first year associates that you would have to research or revisions or digesting transcripts at a lesser rate they're charging four hundred  dollars or four hundred dollars for that kind of work and i think the a l j recognize that and reduced the research particular we thought it was too excessive or it was you know that if he had sent them he or she had said that they had said that they're entitled to compensation for their hours of research reasonably conducted that's one thing but that's not what they  said research is done by paralegals not attorneys therefore i'm going to reduce swelling at twenty cents are she said it's a he and i believe that that is something he said at one point but that's not research through the whole whole case i think that the writing of the briefs and the revisions to the brief route viewed by the a l j it's a very detailed decision going through its probably ten or more pages going through various entries and analyzing board precedent and what he's going to allow and what he thinks is excessive and that is entitle to an abuse of discretion review let me ask you about decision reversed and now they were they will the a l j awarded compensation from the inception of the case all the way through to second appeal was work done before they be which was awarded all of that so this is use is wrong it's one of the issues they raise in the appeal the issue i'm sorry your honor but if you read supposed base their compensation decision on finding their complaints did not prevail until two thousand and ten they raised that argument as a reason that the a l j committed error and and his decision of not enhancing points has the reason why they weren't paid at current rates to make up for the time line ok so you're not arguing that they're not entitled to compensation before they finally got a rebirth no sir we're not there and out of the compensation from the inception of the case we would argue that number one that the enhancement is improper but if there is an enhancement since they have been paid starting at two hundred ninety dollars an hour up to four fifty that the best way of doing any enhancement would be the consumer penny well no they haven't been paid anything because the fee issue hasn't been decided and again they're not asking for an enhancement you're arguing against their ability to get current rights yes how how  much you can see they are top to be paid dollars and cents roundoff round up round down whatever they're entitled to something you wouldn't just tell them oh nothing how much we the county would concede that the amount awarded so far should be affirmed so why should we order that they be paid that amount now and we'll quibble and quarrel about the rest of it later and we stop the clock running own c p i adjustments and so forth what's wrong with that interim relief extraordinary circumstances well if we could end this case that would be very good but i'm trying to in part of it up to that amount you know would you know the amount that that has been awarded we have argued our brief exceeds what was submitted as evidence in the case but you just conceded that they ought to be paid at least that much do they know what i'm conceding is that we want this case over that we believe this court could look at the rates that ha ve been awarded and how they were awarded based on the surveys and use its own experience and the record evidence i am asking you you've got to concede they're entitled to more than a thousand dollars right or entitle to yes more than a hundred thousand right yes they're in time more than two hundred thousand right yes ok why don't we order that they be paid immediately two hundred thousand dollars and then we work out the details on how much above that infinity that could into air force hospital and they were quarrelling and correlate in and out of the courts and so forth about the amount while this will girl like in a near vegetative state and we entered an interim order in that case requiring the air force to pay what it can see did it and then only man the district court can take it from there in and work out the other details i don't remember the name of the case but i remembered in the course of the opinion i used the phrase or the words mumbo jumbo so it's very easy to find and and and i'm asking you if there's any reason we shouldn't do that here i just think it's unjust to keep telling these people you can't get anything but because we don't agree saqlain how much you're to get your honor with all due respect we have that probably had three mediations on this case already that county's position now and has ben let's get it resolved we have not been able to come to a resolution if the court says yes we can see as you suggest that that there's more than two hundred thousand dollars there's more than four hundred thousand dollars  claimants while the case was on appeal and to reinstate that he did that were passed that i know but i raise that just to show that the county is trying to do what's right we have not been able to reach a solution th  this case is over we would like to have an order from this court saying this is what it is and parties you live with that of course we don't think unhandsome should be awarded and if there's any increase it should be based on the seventeen and have percent c p i which would raise their initial rates from two hundred ninety dollars an hour to three forty five and not the four hundred fifty or five hundred dollars they're seeking today compensated i believe that is the president on that that was relied on in this case yes that there is how can that possibly be i think that with regard to that i think you know maybe without looking to too closely at that particular president but looking at how it was applied say that i think it certainly would have been helpful had the ail jay said that i know but why isn't an abuse of discretion to base it on the wrong reason i think i think we need to look holistically at the decision and i think what the ale jay saw was we have you know this law firm this small law firm that obtained we don't dispute excellent results for their clients and provided extremely excellent representation but by the same token these are two very experienced attorneys two partners stan and i should have been able to do the review and revision than a few hours then they did but that's not want the board saying blended together say on how tom thanks said we don't pay for review and revision because it's not in the private sector and i think i don't quite think that's what they said that made i think that's what he said about conferencing that it's not paid in the private sector i don't i don't dispute that that that in this case that they're so that's i i i think it's still a matter within the board and within the agencies discretion how much the compensation could have been taxed have reached the same conclusion correct reasoning and the exercise of correct discretion but didn't and i guess i think we just need to look at it at what happened here i agree with your honor that the rationale here was we're not going to compensate for review and revision but i think under the circumstances of this case where you have partners building a partner rates for all of the tasks i think it wasn't unreasonable wasn't on you i said is that you know you said as read it made the same reduction for the right reason but that made it for the wrong reason that we've got precedent saying that that an abuse of discretion i think it could have made for a different reason i guess i wouldn't concede that it was right versus wrong and i think that again and under this circumstance you would concede that using denying something for the wrong reason is wrong wouldn't yes but i think it's to the extent that it would be deemed to be harmless error not substantial error in this  abusing discretion yes ok that's so it's a so we don't know whether the board would have done that if it had the correct factors are not all we know is the board denied it not the full amount using the wrong reason and we can affirm because we think well the board could have denied it for another reason if you just had an erroneous fully concluded that it was denying it for that reason we don't know if if tone no you can't disallow reviewing revision we don't know what the board would have done it so we don't we don't know exactly what the board would have done again and i would just you know without without belaboring the points i think simply that and the circumstances of this case it wasn't unreasonable for for the board to do what it did with regard to the review and revision given given the partner race that were being they were being charged and even unknown into the mediation i'm sorry have has the department been in home any of the mediation i don't believe i certainly personally haven't j said would not be compensated because in the real world it's not paid for what if we find that that's incorrect i mean certainly in the insurance defense world i would agree with you but i don't know where conferences are paid for i think this may fall into the category of what we're talking about before excessive conferencing so it might deserve a cut but saying that it's not paid for in the real world i just dispute that that's correct it you know that again that that being said i think you know we would concede that that at least you know under some circumstances congress and maybe maybe compensable but again under the circumstances of this case where again you have two very experienced partners charging rates commensurate about two attorneys present at deposition twin the depositions of her schedule so closely together that there was not adequate time to sell tell the second attorney before the next deposition this is what witnesses they said this is that you need to push this point be careful about that point and so for again i think you know when when to the extent i think that as as a factual question as to was there adequate time in between the depositions you know for one attorney to brief the other and i'm you know i'm not one hundred percent certain whether there was you know if as a matter of law in adequate time again i think when you're you know when you have again only two attorneys both billing partner ra president says there should be a difference if it's a small law firm and they're both partners i don't i don't know that there is precedent specifically on that point but i think that the the overall principle is that the rate that should be awarded should be a reasonable rate that's that is supported by a by the market and at least in this case you know to the extent that again that this that a small law firm doesn't have the resources of a law firms who assign certain tasks to attorneys or even support staff who might  a lower rate i think it's not unreasonable for for for an administrative law judge to say that you know that that attorneys shouldn't be compensated at their full rate all of the time because if because under circumstances that are were algaes discretion to say we're not going to compensate an attorney at a partner rate simply because they didn't have an associate or or a paralegal and you do you do recognize that in the private practice world there are dead positions that warrant the attendance of more than want to turn a sometimes more than one partner particularly and i complex case and again here we have a situation where the a l j has sort of across the board said no rather than saying ok this was particularly caught maybe an expert witness deposition would qualify for two to attend there doesn't seem to be that looking into the particulars and i would submit there that you know that's where the abuse of discretion standard comes in i think the abuse of discretion standard applies to these sorts of decisions because the jays the one who presided over this case he was certainly familiar with intimately familiar with the case itself with the level of complexity and i think his decisions you know we can presume that his decisions were informed by his familiarity with the case and and that's are certainly issues across the board on which reasonable minds can disagree i think the abuse of discretion standard counsels a level of deference to the male j it gets you very far but again these issues are all may all rise and fall together if all of the reasons are incorrect on the reductions i think again i think the over the overall motivating principle behind the reductions was billing judgments and so you know obviously to the extent that the court concludes that  simply wrong then then they may well rise and fall together just in the very limited amount of time just i think both parties have had litigated the or have discussed the enhancements or current rate compensation just what may have been for male jna or b s decisions in this case to which it was which was to conclude that only extraordinary circumstances warrant the application of current rates and so i think that that this apartment was trying to apply purdue is trying to apply oh let me ask you one question i don't question we in march we another panel this court remanded to the board the merits attorney's fees issue what's the status i'm not going to use them i just want to say i think judge branch is on the right track the way i was a didn't exclude in the excluded entire categories of time i didn't pick and these thirteen hour days were not excessive or compensable and had also