well our second case of the after now lemons versus reliance and ar correct yes your honor it's a different standard the pressing attorney's piece is a different standard but the the request the denial of a simple request to have an opportunity to move for attorney's fees is to nova because it's that opportunity until we got to reconsideration at the time that we had filed a motion for summary judgment and that was being briefed it was clear that the issue that was before the court was liability not damages certainly not the  this came up and in our reply brief to that we did say we intend to raise the issue of attorney's fees after liability is decided on the most of her summary judgment which was pending before the justice was asked why nothing apparently did happen here over such a long period of time i can't judge my client i can tell you my client called me five hundred americans with no subs in the docket or as i can see from judged in fact my of my argument attorney's piece today was going to take us down this road notwithstanding the fact that neither party not just us reliance have not addressed that were briefed any of the earth sic factors the district court what i come away with this judge tuckered you know her ruling on earth sic came after there was discussion about fees and no one i want to talk about i'm still trying to figure out what happened before there was discussion of the years factors or any kind of link or indication that there would be a ruling on an attorney's fees that there was there was some maybe we're thinking about different as a long five half years judge but i think that what you're referring to is we had received several calls two calls before the mysterious call from the judge's clerk asking us to resign her issues the judge got into it and in doing so she reached the very distinct clues in that because reliance had paid made some partial payment of relief in the form of a partial really that this she constituted that to be effective settlement and then she went on to say that there is this effective settlement render it which was accomplished in two thousand  wasn't there a notice and i don't believe there ever was and they came and went i don't know as i stand here i am sorry that wasn't what i do know is what a motion for summary judgment was filed i expect that one of the different outcomes either we would be granted beginning of the complaint filing didn't have much involvement before it got to suit a long time so what you want is for us to remain and for you to get an opportunity motion to reconsider that was the first time the heart was raised and she had not considered all the heart had been decided before her opinion she had not discussed you then brought to motion to argue for fees we haven't gotten that yet but the judge had a really difficult time working through the record because neither party had briefed attorneys  terms i have said that i wasn't no i when i said you are was that the standard that reliance standard was offering the prevailing party's standard didn't apply and that we were going to be asking for attorneys ask for the opportunity to file a request for attorney's fees right consistent with cases like kharkiv out of the eastern district which is akin to where we're at today and for all the the reasons that the eastern district court in that case crawford policy wise it applies here we're reliant standard after five years of investing my clients money reinstate a partial benefits only because lemons mounted a vigorous challenge and reliance and gauged in this undesirable strategic behavior of terminating withholding women's benefits and a partial payment was made at the eleventh hour simply to before the administrator an administrator not the court i mean i'm just wondering whether after you got that phone call and in fact benefits were reinstated and that you had to assume the district court had the impression that the case  pretty much over why you didn't at that point during those years say you're moving for attorney's fees it's been reinstated we have an answer we have a an ancillary dispute about the amount of the proceeding of the outstanding benefits that we do keep in mind all along that on the issue of moving is the burden of proof by this court's holdings and the united states supreme court's holdings is clearly on the party seeking and that that burden is a heavy burden ok because i mean you're hiding behind strategy a little bit because you know your your client is then getting paid again although there is a dispute as to whether they should have properly  your here's here's your money i don't feel i did not feel i was i was completely convinced that it was inappropriate for me to bring up the issue until the judge had first ruled on liability which was the only issue before the  you please of course good afternoon joshua bacharach i represent the police in this case i think it's important to first start out to clarify some statements that were made that are correct there is no evidence in the district court record that a partial benefit was paid as claimed there is no evidence in the district court record that my client made an incorrect payment of of disability benefits under this plan there is no evidence of that at all so you saying there is evidence that it was reinstated in the plaintiff had gotten everything or by inference plaintiff i got everything to which you can yes and if he did not your honor had mentioned something about he had raised the issue with the administrator that's the problem he did not on may sixteenth two thousand and six my client sends to mr lemons a letter and that letter states here is the amount you're getting your benefits been reinstated here's how we calculate that amount and if you  appeal rights on the benefit amount and he waived them under ask for a copy of that letter do you have that present oh yes i do have your own in fact i asked the clerk yesterday whether i should in response to your first letter she said to hold off but i give it to that and i will give it today and so under this court's precedent not to mention every other circuit you have to as a risk claimant exhaust her administrative remedies and he was told how to do that and failed to and he also failed to raise this issue with the district court so he had so many opportunities to say over five and a half years to say we have a problem here still we disagree so one council comes to the court and says the issue was not moved the only reasonable conclusion that this district court made was of course it's moot we haven't heard anything except for the fact that benefits have been reinstated as the only logical conclusion that could be made then is that there is nothing left for the court to decide what the court specifically said hart is that you have to have some sort of judicial action and in this case there is no traditionally action at all before the reinstatement of benefits of the citation and you have to have some sort of  said that there must be some success on the merits of the claim and the court gets into discussing that merits a claim mean some involvement through the court and not not procedural or trivial involvement by the there must be success on the merits of the claim is the exact language from the decision and here there was no decision by the court on the merits of the claim prior to the reinstatement of benefits and the only thing that did happen was afterward when the court said plaintiff motions tonight so there was no success on the merits and was denied out of moot as a force at that point so under heart analysis because there was no decision made by the court there was nothing the court had ever decided he mean he failed to meet that initial threshold to be eligible to seek the if that's what hart says you have two things you must prove one is that you're eligible to see these and that is the some success on the merits of the claim and then after you met that rochelle if you meet that threshold you can go to the person or five factors type of task and the court did that here the court said you know  time yes and the interesting part too is all right he then filed a motion for reconsideration and that's the perfect time the time to argue there's been a change the law and council still failed to mention  sic factors do not apply he's waived it by failing to raise that issue at that opportunity when he's challenging the district court's decision on the fee issue the specific issue you know  waived the right to bring that in this court you know i think it's important to go back to the failure to exhaust issue because that really defeats the the claim that the court should have done something and that he was left there's one quote newsweek who says i was left without a remedy now he had the remedy it was said to him in a letter where he could have exhausted his ministry of remedies and that's important because what's the purpose of exhaustion is so that there is a record for the district court to consider or in this case this court even going to hand that letter i think also you know not only is this doomed by the fact the council insane thing for over five years the fact that he did exhaust his ministry of remedies but also this court's decision in vitale versus area hospitals which is this benefits case and in that case this court stated the third circuit stated that a court does not need to fix the amount of benefits in order for there to be a final order now whether we're talking about a final order or bending and what do you do if you're representing a client and the motions pending for five years and you know it's some judges are more proactive some judges are less proactive but i kinney however really blame the moving attorney what do you do when the judge doesn't decide the case is very difficult i think there are a few things you could do you could write a simple letter to the judge saying our motions been pending or you can call the judge like or anybody who has practiced in front of judges judges are varying temperament and personalities all of them sweet and reserved of course but you know as well as i do that many attorneys are going to be a bit timid about bringing that to the attention of a particular judge they're going to be afraid that they're going to be seen as complaining so how can you put the in a typical case where both parties argue the merits i would say that maybe something to think long and hard before you do because i think we've seen cases where the party in the sense that letter i guess the answer is not the one they want  yes it's a true i see it's a touchy thing but there's one big difference in this case we had filed a motion a pleading with a court saying this issues mooted by the fact that we've reinstated benefits the only issue that's before the court is now mooted by our reinstatement so if he disagreed he has to say something and if the court still doesn't rule on it i think he has to say your honor just to make clear the issue is still before the court  the letter he should have sent wasn't please decide the case letter should assent was it really isn't moot if it need to slice it in case there is some confusion since benefits were reinstated we are advised in the court that it is our position that the case is not mooted and that the motion should still be decided by waiting five and a half years until after the court has decided the motion it's a little late the cat's out of the bag at that point so i think that there's got to be some responsibility for the lawyer yes is that along the way a five and a half years yes but the reason i'm convinced that the judge didn't do anything for that time is she thought the case was over and nothing done by counsel led her to think otherwise there's plenty of time for him to these issues for your honour's on the fee issue i think the big problem that he has is that he had the opportunity to address your sick factors in his reply brief and especially in his mo reconsideration and by failing to do it he's waived the right to do it at this time and then there's the heart issue but i don't think the court he needs to address that that's that's a thorny issue all admit but i don't think the court needs to get to that issue counsel's really why why why why do you think we need to get the heart i don't think you need to get to hard because even if you soon that he was eligible you have to look at judge tucker's decision on the earth six factors for abuse of discretion motion to reconsider but what our heart says you don't have to get if you find that you have a prevailing party you know have to get hung up on earth sic degree of success on the merits you can then apply the five factors test to see if that particular claimant should receive fees based on the degree of culpability in bad faith deterrence factor in the other factors that every circuit s counsel hasn't presented this court with any basis to reverse either of the decision by the district court therefore we're asking that this court affirm the judgment in its entirety against the claimant thank you are thank you stands for the second issue i need to address is the suggestion that you need a formal willing by the court in order to under heart get to the question of attorney's fees this court has disagreed with that before heart in the defendant if the pressure of the lawsuit was in material contributing factor in bringing about the extra judicial relief and for all the policy reasons that that's good law i think it clearly survives heart the third issue i need to address the numbers out of whack here  i believe it is or i believe it is but i'm not certain your honor i'm sorry kharkiv by the district court apply here and give good reason for this court to utilize the catalyst theory where it concerns or the district court or use the catalyst there were concerns outpatients for fees the other issue i've heard over and over again in the district court concluded reliances argued even today that plaintive is wrong because it hasn't exhausted his administrative remedies i need to address that because it's important there was the wrong because their argument is that a recess in the third circuit requires the exhaustion of every careful issue not claim but issue so the so and the distinguishing between issue one being a liability issue to being damages and what they're saying complaint says i was wrongfully arbitrarily recently denied benefits you're in now your claim is you're not supposed to be deducting the social security benefit the way you have in this calculation this is this was filed in response to a court's request received on monday monday monday this was filed with the courts with of records to the right would like that as well but there's but there's nothing in there to indicate how they calculated