an appeal and the government is basically saying that it should not have an appeal the even though the standard of review is arbitrary capricious there is such a thing as as abuse of discretion and there are certain rules imposed by this court deals with the appeal process so is what's at stake in this case just that one hundred sixty hours that's all there is you're on this is strictly about whether it was whether we had reasonable cause to appeal and  of discretion and not awarding more when the issue had already been decided well the petion had been decided by this court but and milk they filed a petition for certiorari and unlike most their kind the supreme court asked the government to respond to that petition so obviously somebody in the supreme court took that argument as serious and so when even though this court ruled against us on this issue the than two hundred something thousand were in force well there is a different law firm but basically in fact the matter is the there had been no final decision on the military base until the supreme court said no and that was six months after this case was pending here the whole case there was no final decision from the supreme court we will rely on that and same to the argument was viable until the supreme court said it wasn't and that was that was six sixty hours across there are two there were two questions before the court one was the the the actions of the special master and a nine claim and in that case we have a situation where the special master essentially refused to pay it any attention to the treat physicians and there were a lot and relied upon speculation that none of them had done their job and it was good the special master make credibility determinations she did what she she basically  the this case the the treating physician the man who gave the shot it was somebody who knew that child from birth he then he discovers the autistic condition a week that was completely discounted by experts from elsewhere and one the one that with the case was essentially lost and videotapes were a psychologist a fairly new psychologist is disgracing with with expert witnesses and and family member of the center who have years of experience and there is such a thing as abuse of discretion and she and the person who criticize are our expert with them should fear who said the criteria that she is using to look at these videotapes can be seen and any trap and each other and there is no way to discern what is going to be autistic and what isn't it's too early to be done and she agreed that what she was looking at the stuff that was very subtle very very hard to discern and the excuse was well these criteria in that she was using had not been developed it we're talking about expert witnesses who have been dealing with autistic children for years  of patients and all of a sudden and of course the assumption the special master makes is these people not keeping current but sure fear said he knew all about what she was talking about and said he couldn't be relied upon and i go back to back with you on the militant for a in your briefing your opening briefs argued this constitutional point because seven days after this court issued its decision and the like but do you know what the relative timing was i mean i presume a lot of the as an aside we focused on because our position is of course that if you do not have access to an article three court in a program any program that is cut is a common law claim that was is  basically removed from an article from portsmouth congress there must be open access to an article three court at some point in the process or there's a constitutional problem and we're saying here the same thing applies if indeed  have the merits appeal in this case with regard to the special master used decision is a good appeal she she did do things that are questionable and if a lawyer can now be denied  claim said that there is an issue of whether there's any merit to this this good reason to bring the claim and our position was yes there was plenty of good reason about the facts and but we're also saying that if indeed you have we have the issue of how those facts are evaluated because you know under even under the even under the arbitron capricious standard there is always the abuse of discretion and where you have a record like this whether we states and we had five four of them on this case and one the government's expert admitted he does he disagrees in every way and yet he was accepted and the others were dismissed and they're all experts and several them were treating appendix in the court of claims opinion i guess which just i'm just looking at it because i'm looking for some of the what basis was here on the top of that page i think they summarize that they were an overlap here but there were sort of several bases for the just for the maxine for the that scene special master to decline attorneys the first seems to be the fact that we thirty six the original  just legal marijuana can i ask of i'm going to director tenet of the for isn't it a little dubious to be relying on the fact that we just thirty six generally thirty six a lot of preparation work more than one week before why should he at least be credited even if we reject his notion about supreme court and all that stuff why shouldn't he at least be credited with the cost of that initial the constitutional argument right and melich still going on whether or not that was reasonable he said it wasn't for several reasons and these reasons preexisted the briefing and after the briefing first being this court standard of review has been clear this court did say or the supreme court did say that the standard of review was unconstitutional and that this court should be reviewing this case to know it all comes back to the fact that the facts of the case in every single instance every single factual determination and credibility determination when i get a little tiny weighted right you're not saying if there's a not if you think the fact he's wrong on the facts that he shouldn't be able the press the standard of review i say that he would he did exactly what he needed to do in this case right by preserving that argument by at least arguing it right yes so why isn't that kind of enough in the context of  at least with respect to the blooper eve he was in a position of appropriately preserving that right and i mean if you can clarify is your answer which may be a good one which is that he wasn't arguing he was arguing only the whole search which went on for an protracted period of time he was not isolated correct and the special master has that discretion the standard of review purposely by congress was to give the special ability to look at everything that is happening and decide whether or not there's a reasonable basis to bring the claim and whether or not there's a reasonable basis for the claim to continue and that includes the appeals the special master look this story there were two special masters in this case just to clarify that was the special master who heard the case and wrote the decision and then the special master who determined the special master who determined fees looked at the special master wrote the case and saw a one hundred sixty one page thorough decision and said i don't think there was a reasonable basis to to appeal this case but yet except he has no way of knowing necessarily whether it is if the standard are free you would be different or flipped the case might look a lot different right i think while he made clear that it doesn't matter whether or pages twenty twenty one what specific language are easily like for him saying even if you had been successful in millet they didn't have a reasonable chance of succeeding on appeal page twenty one the last sentence section well the whole last paragraph you've been studying second star exactly even in the unlikely event the federal circuit overturned its own precedent and applied to a different standard your view and even if the circuit considered the factual issues do no vote there are still no reason based on the existing record to speculate that the federal circuit would have reached a different conclusion the special master of l upon my own review of special master ballot and judge braden's decisions i find the  evidence going to core aspects of petitioners claim means so far against petitioners plane that such an outcome would be highly unlikely and i dragged you to the special master summary of her decision which is very gentle that i think is a fear we deal but i understood so maybe i'm wrong the response we're talking about here is not a specific request for the s g s views but is simply every time somebody the military base and now this case to be extremely important because essentially if indeed attorneys have to worry about whether they're going to be second guessed is whether there was good grounds for something and they could not get paid means that petitions just are not going to be able to get lawyers to go beyond a decision by the claims court and that is not the intent and the intent of congress and the intent of the u s just saying then that an abuse of this discretion always exi remember there's a lot of things i'd like to see changed but no i'm not arguing that formally i'm saying basically we cannot allow a situation to arise where lawyers who are already reluctant to participate in this program become more reluctant to go to appeal when they believe something is wrong but they're not sure that they're going to get paid for it is that true that lawyers are reluctant to take these cases when they generally get paid even if they lose  honor i haven't looked at the statistics in the last five years but five years ago there were one hundred eighty two vaccine wires in the united states despite the fact that they were going to get paid it was at that time when i did that paper it was a long time ago and it was not for the court it was an academic paper that it was easier for a wounded dog to find a lawyer than it was for a vaccine and trial so something is wrong but looking at the numbers here there was fifteen hundred hours ill post litigation right and we're f we can't we can't make it difficult for lawyers to make that decision and you know i i know that some simply are not going to take appeals because of this case and i think that has to be mo