and also a fraction of his record which he was requesting which totaled six days so but that's what a couple hundred dollars it actually the agency pretty more than a couple hundred dollars in reality it would have been a couple hundred dollars where you can kind of see where i'm going with that question but it seems like that's a rather minimal amount of recovery and yes a couple days are corrected on his record but isn't there some justification the total amount of relief that was requested and the total amount of relief that was requested during the context of the hearing was ostensibly true days of the two days there were it let me ask you that question in that respect because  to really for how many days it requests for relief or be it provided it introduced evidence while it introduced into the record evidence supporting the two days and the two days were actually requested during the context of the against the claim that was originally requested the claim that was requested in the initial rehearing submission or the claim that was requested just prior to the final hearing because obviously it got duration of time that is a initially cited in the complaint is an expansive one and that is largely because military records and civilian pay records are largely unavailable to the appellant at this stage and it isn't until he has the jury to consider all of the requests from a's throughout the course of the proceedings just as any complaint that's filed in a litigation matter complaints are filed with the intention of preserving a client's ability to recover the total amount that they are entitled to and as discovery commences and as additional records are provided on something to me drop out or some things may later be abandoned in this case a certain amount of success if that were the standard then all claimants bringing a barb or claim would essentially be precluded from obtaining attorney's fees and the reason for that especially when this claim was initially filed  g arsenal of their records for a twenty year period of time they simply didn't have access to that moreover the agency has to determine what advice would you give us as far as setting a standard for what is nominal or not nominal in terms of setting a standard is that petitioners argument that the distinction between what is and what is not nominal should be based on the total amount of relief that was requested of the administrative judge prior to the hearing ok let's face it on whatever what is there a percentage cut off that you think there ought to be to the percentage respect i think a percentage cut off is subject to the looking at it where in this particular case mr kennedy specifically requested two days pacifically requested that six days be corrected on his records his eight other thirty two what's that twenty five percent  mr della sanders morning your honor may it please the court this court's holding in jacobson is controlling and requires that the merit systems protection board's decision be affirmed mr kennedy asserts three reasons for why he's entitled to attorney fees he alleges that he completed the necessary forms then retained relief from the m s p b and therefore he's entitled to return even jacobson the success rate was somewhere around fifteen percent right  it was one in seven your honor that's about fifteen percent it's higher here even counting in a way that mr solomon suggests we should not count actually your honor it's lower on jacobson the claim was for seven years and the the panel what the administrative judge the tell me why you think it's lower eight out of thirty two seems like what you're on higher to me the administrative or the administrative judge here noted that these were they obtained entitlement to pay for two days in one thousand nine hundred six and the correction of records for six days in one nine hundred ninety seven that was two years out of the twenty one year period or less than one in ten compared to one in seven years who have been drinking six years we get into what we're looking at this part of the problem let's assume we're looking at the days thirty two they went on honor thank you the military leave didn't constitute effective relief and was looking just at the hague days and in their case he found that there were two days out of the thirty to one in sixteen which was again less than the relief awarded in jacob little bit of my concern here if it seems that an administrative law judge as this one did can look at years as you argued to me two out of twenty one years and say oh that's nominal or we can look at days and it becomes bigger is this area so fluid that we allowed the ministry of law judges to pick the facts that they want and characterize them as they felt that the resolution of the degree of success issue centered on an examination of the claims presented to the board in this case they presented a claim to the board and we've attached those documents in the appendix to the red brief showing that they claimed twenty one for a much much i bless you tom and i believe your honor from the record that those those revised claims were presented the day before the hearing in this case the air force was required to defend against the claim for twenty one years until the very time you know until the very eve of the hearing if they had come in at the very beginning and said we're entitled to days the air force may have taken different litigation strategies and the petitioner may not have accrued twelve thousand dollars  it fair to look at the in schol claim because says ms sullivan points out that the unless a party has meticulous records it's almost impossible to tell exactly what believe might have been used so naturally a party comes in with with a broad claim yet so necessary discovery has to to see what the records actually show and then  fees may be awarded at the discretion of the board i'd also like to point out your honor that that argument that miss solomon presented was not presented in her brief it's been presented as far as i can tell for the first time here today i haven't had an opportunity to go back and review the veracity of the statements as to whether or not the defense was taking such a position but even assuming they were it's still the responsibility of the petitioner to present a valid claim opposed to any particular time or any particular stage i believe thing else i believe your honor it's the claim that's initially presented that the administrative law judge in this case also said that even if the later date is the valid point the  hearing submission of thirty two days that he still found it was not it was still a nominal success and i don't like to turn back to judge raters question about the number of days and saying that eight days out of the thirty two would be twenty five percent if you review the the military leave summary which is in the appendix to the read briefing pages nine through eleven as i read this document the eight days of relief that were awarded for the improperly charged leave in one nine hundred ninety nine those dates are not here in the summary so those days that's relief that he received but that wasn't part if the universe of the thirty two days so again we're still back to two of thirty two days or one sixteen but also like to to respond your honor very quickly to the public policy argument presented by the by mr kennedy basically the public policy argument s re argue jacobson this court is bound by the earlier panel decision in jacobson their interpretation would deprive the board of discretion in providing for the work of attorney fees and would turn you sarah into a mandatory fee shifting noted not contain any of the days that were initially requested or awarded during the context of the hearing moreover because it be was marked for the record it wasn't introduced into evidence the only evidence relied on that the ministry of to judge w appellant's exhibit amended exhibit a one wherein the relief requested was explicitly delineated as noted in the administrative judge's decision and a fourteenth or fifteenth of the petitioners  cooper and the administrative judge indicated that he was relying explicitly on the accounts of men amended exhibit where the evidence reflected that mr kennedy was entitle to two days and a correction of six days of the records lastly just briefly address the concerns of the government's argument about the public policy argument wherein it was stated that the petitioner argues on for a standard that boyd arbitrarily or ostensibly denying the m s p be yeah or to need to make discretionary decisions which is provided for by usera the decision to award to raise fees is absolutely discretionary however in this case which denied the petition for attorney's fees and the exhibit b was neither relied on nor entered into evidence before the merits systems protection board the administrative judge really was overreaching in this respect and in conclusion the decision to rely on that and take into consideration when evaluating the overall degree of six excuse me success was arbitrary capricious a constituted an abuse of discretion and conclusion if there's no further questions from the panel the petitioner would respectfully request decision be reversed and remanded to the board me to determine what a reasonable amount of attorney's fees would be thank you thank you miss solomon the next case is patent rights versus video