thank you very much on my police car come carpenter appearing on behalf of mr philip wagner in this case the court below refused to in the terms of its holding reward the appellant for his efforts in defense of his earlier application for attorney fees and expenses under the equal access to justice act we believe that that holding relies upon a clear misinterpretation of that statute the statute requires that the be or the prevailing party be provided reasonable fees for all part of the civil litigation the defense of his ija application is a part of that process this court has held in fr z that the defense or excuse me the inquiry into a fee agreement under the court's authority under seventy two sixty six comes within the civil action parameters of a consideration of  or entitlement to ija before the reviewing court were to say i'm sorry go ahead while i will say the same hold true here when we're dealing with the defense of the reasonableness of a fee the government did not contest prevailing party the government did not assert that it was substantially justified the government simply attacked the reasonableness of the fee saw and judge lance reduced the fees by approximately twenty six percent and affirmed or awarded fees in the amount of  proximately seventy six percent therefore mr wagner should have been entitle to the reasonable expenditure of attorney fees and top of the attorney that submitted that fee application proactively determined that the that there should be a proportional reduction and essentially asked for a fee for approximately half of the time which was actually spent in the defense of the huge application what do you think is the is the right way  to approach to calculation of the fee on theon a situation in which as in this case there is a a portion of the fee application that's uncontested and then be a portion that's contested some of which is cut back should be in thinking about the arithmetic here should you have a feeling fee that is calibrated according to the entire amount  that was requested minus the amount that was granted or focusing only on the amount that was contested take the fee and fee based on the reduction in the in and that smaller amount yes then the question is yes to do something and i would suggest that it is through the lens of the fruits decision that it is part of the civil action and therefore as part of that civil action regardless of how the reviewing court decides the appropriateness of the original application there are some portions of that that were required to be defended as a result of the government's objection respect of the twenty five percent of challenges under those circumstances why should there be a fee for the few luggage if the government were to have conceded that seventy five percent number then i think in your hypothetical your honor that that would probably be correct because there would have been no fee awarded well maybe not i'm sorry as i  work because what you're required to do is to prepare the application and i'm not really sure in the solemn of this notion of dividing the baby that we can really subdivided the defe bits of those you don't really know whether the government's going to pose the application until you put in the work to prepare the application and now that you have assemble all the hours and you have to put the justification and have to send it to the government and that that considerable expense and then the government says you're right as to seventy five percent we oppose this to twenty five percent and even if you say ok and you fold your tent at that point you would argue i would assume that you're entitled to fee fee on based on the fact that you had to go through the work of preparing the application well not only preparing the application preparing a response to the government's assertion the mere fact that the government asserts is right but  yeah you're right and we withdraw that the extra twenty five percent you still say i would assume that you're entitled to something for the time you put in preparing the application for preparing the application no question you are but if i that what is that part of what's being claimed here i don't believe so in our i believe that's a problem is that i agree because what we're looking at is precisely the circumstance that you're suggesting without quite the pursuit of a concession but the fact is that mr wagner was required to respond to the challenge to the fee application of the so the so what he's claiming here is the cost of responding to the government absolutely and that's all it's time yes and he can he's not claiming any fees in the fence of that portion of his the application which was reduced by the court he acknowledges that in that portion he should not necessarily should not be entitled to a fee and he's not claiming the costs of judgment billing judgment i'm not going to bill for that but there was a time that was spent in responding to the government's contests and that he does build and and i believe the statute requires it under its plain terms and government opposed to chunk of that and the court the lawyer did about thirty percent of the opposed chunk am i right about that roughly well it was my understand or should less than half i think that well it was my understanding from reading the record that the entire application prevailed at approximately seventy percent right and thirty percent of the original application was ok but i and my understanding was that there is was a chunk of the original application that was not opposed it was another chunk that was opposed and of that second chunk he got somewhat less than half honestly on as i believe that that's the substance of the argument in the case i don't believe that there's anything else that i can add in any comment further unless or any further questions always are the balance of my time for  because the amount you're claiming in fees now is more than the amount that the original location was reduced by you don't get anything that can't be correct and what the court actually if if you look at the underlying  application and specifically if you look at the challenge now and what the court found with regard to the challenge amounts to going to each of the challenged amounts the court found that the parents position was unreasonable so now when and then discussing the the decision of that that he wants his fees for fees on the court in in that case how that each of the challenged amounts by the secretary what that that appellant's that appellant's amounts were on reasonable well that's always what a court will say when a court is reducing a fee up location from x amount to x minus n but and in that that happens in many many fee application cases you're not suggesting that that because of the unreasonable conduct of the fee applicant that the fee applicant and cases in which there is any reduction should get no award on these fees i've not doubt that that would obviously be very and that is not what what we're dancing here though what exactly is a situation in which there should be no fee on fee or in the lead of if it appears here that with that what has occurred because that the main of what was challenge was held to be on reasonable therefore the court in the signed the ija fees on fees refused to award reasonable fees force for war what in the main was on reason because again that the secretary only challenge to it so if it's over if if there's a challenge to math let's suppose it's a ten thousand dollars fee application the secretary challenges two thousand and the court grants nine hundred dollars of the two thousand it was challenge then there should be the numbers in the in the abstract is that it is difficult to come up with any single answer and i would presume that it would it would seriously constrain the reviewing court to say you know that it was nine hundred dollars maybe for example and in your hono hypothetical so out of ten thousand dollars two thousand dollars is challenge now there the if you ward of nine hundred though was because of the two thousand the secretary's position was completely in the is the arguments the court completely  instead it was reduced to the one hundred amount because eleven hundred dollars really really it's a clear call that ass as opposed to something that was uncollectable for example under ija so in in that particular case yes it would be it the appellant should in that case fees or she should be awarded because because the the the underlying that occasion was reasonable but but that is not what has occurred here instead of the challenge amounts the court held that that that appellant wasn't entitled to those averages so so what but but but if you look at it for it so there were three categories of fees that were there were challenged by the secretary one of which the secretary was completely successful on it was the point ours was the night it's in its entirety of the of the other of the breaks that out and in in other cases and that is double because of what it was unreasonable in which with regard to which of the fees it was your your argument i take it is it was an unreasonably large  that you know if if there's a certain percentage reduction then ija fees for fees aren't awarded instead what the court apparently did was it looked at the challenge the amounts and of those challenge amounts because the majority of the challenge amounts palin was unsuccessful s was labeled a b and c and the government succeeds us to a and b but it's unsuccessful is to see why shouldn't the applicant why shouldn't the veteran get some compensation  successfully litigating the c category i think in that instance that it that that the that the applicant would be entitled to because again with regard to that portion they were successful and that and that that and that litigation it's reasonable for where the court found that the appellant was at its charged too much time for particular activities but nonetheless seems to have found that those activities are at least some of the word legitimate activities for which bees were discretion in each of for the court to look at the underlying that again and say look at the success rate as a supreme court has said that and then to take it all and decide how much was challenge what exactly was was was done here and what was there are closer cases where if for example and in judge banks hypothetical if a was only worth one hundred dollars and b was worth one hundred dollars but the c portion was worth ten thousand dollars and being successful on c is a lot more important than being successful on a your beat so having that discretion and being able to look at the underlying case which the veterans court did in in in this instant instance in making that the termination that that that this in looking at what the court held with regard to the underlying ija application and with regard to the underlying egil litigation that that was an reasonable and it is going to be difficult to offer any sort of per se rule a b c one out of three or any sort of percentage because one could have one can easily in in vision  scenario for example where the majority of time the majority of ija time was spent on stay in judge likes hypothetical so if the majority of egypt time is spent on any then if you're not successful on a it it seems absurd to then say that i can collect all the money that if if the ija fees that they were discussing to use on its use a hypothetical r ten thousand dollars in total of which seven thousand dollars goes to a and then and then two thousand dollars goes to b and then one thousand dollars worth of time goes to thirty two percent of that therefore they should only get thirty percent of the as opposed to understand now the question is do they get nothing do they get nothing so this is obviously an extreme example where where the court is held that that that that they're entitled to nothing but the but the rationale and the legal standard that was applied was the correct one and then making the picture of you have any authority and i mean the applications are found  and other circuits have many of these cases in many of which is far as i could ascertain the the the approach is that if you're partially successful then you get a partial the on fee that's a fairly fairly typical you in any case in which there's been an altogether denial of the fees on fees award in a situation where the underlying theory application was partially successful i have found underarm neither did i  but at but at the same time the the rule that the court apply and i and i realize that are that awarding nothing is an extreme case but at the same time the what the court did what all the court was doing was looking at what had occurred below and made the determination that on the whole in this particular case and there and the veterans court in in in interviewing fee applications has in certain instances in partial success has seems to suggest that to the extent that applicant does prevail they get fees right through to a degree all though the example that that's offered in g is is also somewhat interesting in that  it's as if the government's challenge to a requested rate for a paralegal time resulted in the court's recalculating and reducing the award for paralegal time from the request that amount then the applicant should not receive fees for the time spent the fending the higher rate so that presumably means that you can't even if your pa even if the rate is is just a reduction there may be instances where the defendant should not receive fees for the time spent defending that rate because that reduction is so significant so if for example the reduction would be ninety nine i had that that the court is going to review whether or not in fact this was reasonable or or unreasonable that is the application of lot of fact and then there would be no jurisdiction obviously to the extent that it's just the interpretation of the just that you this court and then of course has unreasonable which is the application of of lot of facts or that indeed there would be no jurisdiction to the extent that the court would find and we don't and our position is that this is not the case that there's a reinterpretation of the statute so then this horde of course would have jurisdiction in government in defense of the decision below the centrally seeks to do precisely what being asked that we not do that's create a second litigation if you adopt the position the interpretation that was relied upon by the veterans court then the government is encouraged to attack each application so that they can get a single finding of unreasonable list on any portion of that application if they do then under this rule and this interpretation feeds on fees are negate