[00:00:01] Speaker 01:
So Ms.

[00:00:01] Speaker 01:
Rountree, you're here?

[00:00:03] Speaker 01:
You're here, so we're ready to go.

[00:00:05] Speaker 01:
That's OK.

[00:00:07] Speaker 01:
The first case for argument this morning is 14-5084, Beery versus United States.

[00:00:14] Speaker 01:
Mr. Hearn.

[00:00:18] Speaker 03:
Thank you, Your Honor, and may it please the Court.

[00:00:21] Speaker 03:
I am Thor Hearn, and I am here today on behalf of the Kansas landowners bringing this appeal.

[00:00:27] Speaker 03:
This case comes before this court after almost a decade of litigation, more than 3,900 hours of work by attorneys for the landowners, including paralegals, and the Justice Department themselves have spent about 4,800 hours, almost 1,000 more, defending this case.

[00:00:47] Speaker 03:
These landowners prevailed entirely on their claims and have since been paid.

[00:00:52] Speaker 01:
Can I, just let me stop you there because the number you just gave us is the subject of a motion to supplement the record, right?

[00:01:00] Speaker 01:
So that number is not currently in the record in this case.

[00:01:04] Speaker 03:
I would note that, Your Honor.

[00:01:05] Speaker 03:
That is the number that comes from the eight pages of FOIA documents that the Justice Department produced, which is the subject of

[00:01:12] Speaker 01:
And since we're just talking about that, and that is arguably a probative fact in our consideration of this case, the government's view, which I think is pretty strong, frankly speaking, only for myself, is that it's too late.

[00:01:27] Speaker 01:
It's not a question of you having sought this up front and not getting the answer until after the case ran out.

[00:01:34] Speaker 01:
But you didn't even seek this information until after the court of claims proceedings was concluded.

[00:01:39] Speaker 01:
So why are you entitled to now supplement the record?

[00:01:42] Speaker 03:
Well, we did seek it when it was still pending before the district or the court of claims.

[00:01:46] Speaker 03:
We made our initial FOIA request.

[00:01:48] Speaker 03:
The Justice Department did not timely respond to that.

[00:01:51] Speaker 03:
We filed up with a second FOIA request.

[00:01:53] Speaker 03:
And so it was a year and a half after our first FOIA request.

[00:01:56] Speaker 01:
When was the first?

[00:01:57] Speaker 01:
I thought the court of claims decided the case in January of 2014.

[00:02:02] Speaker 01:
And I think it was a week after the Court of Claims opinion issued that you saw it.

[00:02:09] Speaker 03:
And the case was then on rehearing to the Court of Claims.

[00:02:11] Speaker 03:
It was still before the Court of Claims.

[00:02:14] Speaker 03:
It was not a final decision yet when we requested that FOIA information.

[00:02:18] Speaker 03:
And had the Justice Department responded timely, we could have provided that to the Court of Claims before

[00:02:24] Speaker 03:
the Court of Claims issued a final decision that's subject to this appeal.

[00:02:27] Speaker 03:
You mean after its opinion pending reconsideration.

[00:02:30] Speaker 01:
Why didn't you ask for it earlier?

[00:02:32] Speaker 03:
Well, we had, in course of discussions with the Justice Department earlier, we had had some indications that they would provide it informally.

[00:02:39] Speaker 03:
But at this point, we had to request it formally with the FOIA request.

[00:02:42] Speaker 03:
And as to the admissibility of this as supplementing the record, we think it's both obviously relevant.

[00:02:49] Speaker 03:
It is not just relevant, but there's no disadvantage or prejudice to the Justice Department.

[00:02:54] Speaker 03:
because they produced and created these records.

[00:02:57] Speaker 03:
Also, no surprise.

[00:02:58] Speaker 03:
These are their own records.

[00:03:00] Speaker 03:
There's no question about the authenticity.

[00:03:01] Speaker 01:
The Court of Claims, you both went through some considerable time and effort making your arguments to the Court of Claims.

[00:03:07] Speaker 01:
The Court of Claims put a lot of time into considering each and every argument presented to her.

[00:03:12] Speaker 01:
And this wasn't there to factor in.

[00:03:15] Speaker 01:
You presumably think this is a game changer or at least an important factor.

[00:03:19] Speaker 01:
Well, if that's the case, then it should have been hers.

[00:03:22] Speaker 01:
I mean, essentially, you're saying, well, throw out everything she said, because now we've got this new information that was available beforehand, but we didn't ask for beforehand.

[00:03:31] Speaker 01:
And now we should just do a do-over based on that new information.

[00:03:34] Speaker 01:
How can that be appropriate?

[00:03:35] Speaker 03:
Well, we're not saying that.

[00:03:36] Speaker 03:
We're not saying you say it's a game changer.

[00:03:38] Speaker 03:
I wouldn't characterize the information as a game changer.

[00:03:41] Speaker 03:
I do think that it certainly provides some compelling support for our position.

[00:03:47] Speaker 03:
But I think the errors the Court of Federal Claims made, she made legal errors that were made that are contrary to the Supreme Court's fee-shifting jurisprudence, contrary to this Court, irrespective of considering that additional information.

[00:04:01] Speaker 03:
But I do believe that it should be supplemented, the record should be supplemented with this, and that the Justice Department's failure to provide this more timely

[00:04:09] Speaker 03:
as they required, it would have been provided to Judge Firestone before she issued a final decision.

[00:04:17] Speaker 01:
Just to be sure, what you're saying is, you requested it after the Court of Claims ruled, and you're saying how long did they take to provide it?

[00:04:30] Speaker 03:
I think it was almost a year and a half after that.

[00:04:33] Speaker 01:
So you're saying if they hadn't taken so long, then you would have presented it to the Court of Claims on reconsideration, but not before the decision of the Court of Claims.

[00:04:42] Speaker 03:
Absolutely.

[00:04:42] Speaker 03:
Well, the decision the Court of Claims made was really a multi-stage decision.

[00:04:46] Speaker 03:
So the Court of Claims made a first decision in 2012 on the methodology for attorney fee calculation.

[00:04:53] Speaker 03:
Then it made another decision in terms of principles to calculate some of the specific

[00:04:59] Speaker 03:
That's the decision I believe you're referring to, Judge Prost, in 2014.

[00:05:04] Speaker 03:
But that was not the final decision, because it not only had reconsideration, we still had to actually calculate the fees in consistency with Judge Firestone's decision.

[00:05:15] Speaker 03:
So the 2014 decision was not by any means the final word from the Court of Federal Claims, even before the motion for reconsideration.

[00:05:25] Speaker 03:
But had the Justice Department provided that information

[00:05:28] Speaker 03:
Within 20 days, as the law required for a FOIA request, we would have had that information before Judge Firestone.

[00:05:35] Speaker 01:
Well, we would have had to move before Judge Firestone to open the record and admit that.

[00:05:42] Speaker 03:
Correct.

[00:05:43] Speaker 03:
We would have presented that to Judge Firestone in the course of the calculation of the fees pursuant to her decision.

[00:05:55] Speaker 03:
Totally apart from that information that the Justice Department provided, the Court of Federal Claims failed to provide in making the adjustments to the lodestar.

[00:06:07] Speaker 03:
So what it did was it made a almost more than 70% cut to the unadjusted lodestar fee that was submitted.

[00:06:16] Speaker 03:
That decision is certainly contrary to the Supreme Court's fee-shifting jurisprudence.

[00:06:23] Speaker 03:
Judge Firestone also cut

[00:06:24] Speaker 03:
the prevailing market rate from what the Laffey rate would be by 35%.

[00:06:30] Speaker 03:
That is a cut from the prevailing DC market rate.

[00:06:34] Speaker 03:
Both of those are errors that the Court of Claims made that are inconsistent with the Supreme Court's jurisprudence.

[00:06:41] Speaker 03:
How so?

[00:06:42] Speaker 01:
I mean, this is an abusive discretionary view.

[00:06:45] Speaker 01:
What is the legal error?

[00:06:47] Speaker 03:
Well, quote from Perdue.

[00:06:49] Speaker 03:
The quote from Perdue is, it's essential that the judge provide a reasonably specific explanation

[00:06:54] Speaker 03:
for all aspects of a fee determination, including any award of an enhancement.

[00:07:00] Speaker 03:
Unless such an explanation is given, adequate appellate review is not feasible.

[00:07:05] Speaker 03:
And without such review, widely disparate awards may be made.

[00:07:08] Speaker 03:
These awards may be influenced or appear to be influenced by the judge's subjective opinion regarding particular attorneys over the importance of the case.

[00:07:17] Speaker 03:
So here are the errors.

[00:07:19] Speaker 03:
She made blanket cuts with no evidence to support them.

[00:07:23] Speaker 03:
For example, in the Kansas Supreme Court argument, she cut that from 600 hours to 150 hours for two rounds of briefing in the Kansas Supreme Court oral argument in the Kansas Supreme Court and provided no evidence or explanation to justify that reduction.

[00:07:41] Speaker 03:
The cuts not only in the lodestar,

[00:07:44] Speaker 03:
But the failure to use a prevailing market rate also conflicts with the Supreme Court's jurisprudence.

[00:07:51] Speaker 03:
The rates that she adopted, there's no evidence at all in the record to support what they call the DOJ Laffey rates, which are 35% less than the rates that are the Salazar adjusted, customarily used rates in the District of Columbia.

[00:08:08] Speaker 03:
So those are the rates that should have been done.

[00:08:10] Speaker 03:
This court's footnote four in Bywaters indicates it accepts

[00:08:14] Speaker 03:
the Salazar rates.

[00:08:16] Speaker 03:
It also would be a split with the Third Circuit to take the DOJ adjusted rates instead of the Salazar method for adjusting Laffey rates in Washington.

[00:08:27] Speaker 01:
How so?

[00:08:27] Speaker 01:
As I read the Third Circuit case, yes, they said that the district court didn't abuse its discretion by using the Kavanaugh matrix, but that doesn't get you necessarily to the conclusion that this court was compelled to use that matrix and not the Laffey matrix.

[00:08:44] Speaker 03:
Well, then the court has, as Purdue said, some obligation to provide evidence on why the method they did adjust Laffey rates was appropriate.

[00:08:53] Speaker 03:
And there's no evidence of any sort in the record to support that.

[00:08:57] Speaker 03:
All there is is a footnote or citation to a footnote in the Department of Justice's website that has the DOJ Laffey matrix.

[00:09:05] Speaker 03:
Either way, you're adjusting the Laffey matrix.

[00:09:07] Speaker 03:
The only question is, are we going to adjust them based on the change in the cost

[00:09:12] Speaker 03:
pizza, cigarettes, and dry cleaning, or are we going to adjust them based on changes in the legal service index, which is what Salazar has done.

[00:09:23] Speaker 03:
And so that's why the Third Circuit's embraced Salazar.

[00:09:26] Speaker 03:
That's why this court noted Salazar with approval in the Bywater's decision.

[00:09:33] Speaker 03:
I have asked to reserve the balance of my time, sorry.

[00:09:43] Speaker 00:
I believe I heard counsel say that the Federal Circuit in Bywaters adopted the Kavanaugh matrix.

[00:09:55] Speaker 00:
If I heard correctly, that is incorrect.

[00:09:58] Speaker 00:
The lower court made this point clear, and it's clear from a reading of this court's decision in Bywaters, that there was no explicit adoption of the Kavanaugh matrix.

[00:10:11] Speaker 01:
So is it your view that the

[00:10:13] Speaker 01:
district court, or in this instance the Court of Claims, has unreviewable discretion to decide which matrix to use?

[00:10:23] Speaker 00:
It's not unreviewable, but the standard of review for this court is for an abuse of discretion.

[00:10:29] Speaker 01:
And it's quite... So is the district court compelled for purposes of our being able to review their decision, their choice between the two, to give some analysis or explanation as to why they're picking one rather than the other?

[00:10:43] Speaker 00:
I believe that the character of the matrix itself speaks for itself, but I also think the court needs to understand the context in which this was all presented to the Court of Federal Claims.

[00:10:53] Speaker 00:
There was a significant amount of evidence presented to the court in addition to references to cases that have either affirmed the use of the standard laughing matrix

[00:11:07] Speaker 00:
or indicated expressed that its characteristics were sufficient for determining reasonable hourly rates.

[00:11:15] Speaker 00:
What I would just like to point out is a starting point here on this particular point concerning the matrices is found in the Supreme Court's decision in both Bloom and Purdue where the court basically said the bottom line is when you're looking for reasonable hourly rates, you look for prevailing market rates in the relevant community.

[00:11:36] Speaker 00:
If you look at the standard Laffey matrix, it meets that.

[00:11:40] Speaker 01:
But DeFrend relies extensively on Purdue.

[00:11:44] Speaker 00:
For another proposition.

[00:11:46] Speaker 00:
Yeah.

[00:11:46] Speaker 00:
And that proposition is that the CFC erred in making percentage reductions.

[00:11:53] Speaker 00:
And that clearly is not what Purdue stands for in terms of when adjustments are to be made.

[00:11:59] Speaker 00:
On that point, Purdue clearly says that the normal course for the Lodestar calculation

[00:12:04] Speaker 00:
is that the court is to look at hours and the hourly rate, make adjustments as it's determining the lodestar, and then reach a lodestar figure, which has a strong presumption of being reasonable.

[00:12:15] Speaker 00:
That's exactly what the court did here.

[00:12:16] Speaker 00:
In Purdue, however, the trial court made an upward adjustment after the lodestar had been calculated.

[00:12:25] Speaker 00:
That's what the Supreme Court had a problem with.

[00:12:27] Speaker 00:
That's what this court had a problem with in Bywaters.

[00:12:30] Speaker 00:
And that's why those trial courts were reversed

[00:12:32] Speaker 00:
and the trial court was told on remand, do the calculation in the beginning.

[00:12:38] Speaker 00:
Look at the factors that you determined were appropriate for adjustment and see if they fit properly within the lodestar calculation as it's normally done.

[00:12:47] Speaker 00:
And this court actually in Bywaters actually acknowledged that though the results might be the same, the process is to be followed.

[00:12:55] Speaker 00:
So this court realized that

[00:12:57] Speaker 00:
There is a difference between making an adjustment as part of the lodestar calculation versus after.

[00:13:05] Speaker 00:
Appellants suggest that there's no difference at all.

[00:13:08] Speaker 00:
A close read of both Purdue and Bywaters, a close read of the case, not just of snippets of phrases taken out of context, make clear that what the court is looking at is when the adjustments are made and whether it's in keeping with the strong presumption of reasonableness that the lodestar enjoys.

[00:13:27] Speaker 00:
But getting back, if I could, to the laughing matrix, I think there are two particularly compelling reasons why this court will find that the CFC's use of that matrix was within the court's discretion.

[00:13:43] Speaker 00:
And this is aside from all of the evidence that's in the record, but this is also in the record.

[00:13:48] Speaker 00:
When appellants were in the CFC and trying to convince that court

[00:13:52] Speaker 00:
that the hourly rates it should be using were counsel's law firm's national hourly rates.

[00:13:59] Speaker 00:
Appellants actually stated in their briefing that they wouldn't object if the CFC used the Kavanaugh matrix rates.

[00:14:09] Speaker 00:
But they pointed out that the Kavanaugh matrix rates were higher than the law firm's rates, the law firm's national rates.

[00:14:18] Speaker 00:
Now, why they said that then was they were trying to convince the court to use the hourly rates.

[00:14:23] Speaker 00:
And they were saying, well, if you compare the two, Kavanaugh's higher, but that shows that our law firm rates are reasonable.

[00:14:30] Speaker 00:
At this stage of the litigation, where we are right now, that concession shows that the Kavanaugh matrix rates were higher than the national rates for the law firm, which is a reason why the CFC's ultimate decision here not to use the Kavanaugh rates was reasonable.

[00:14:46] Speaker 00:
If we look at another example,

[00:14:48] Speaker 00:
We have appellant's own expert, Dr. Mallowayne.

[00:14:53] Speaker 00:
During her deposition, she testified about the problems with applying the Kavanaugh matrix for purposes of determining hourly rates for Washington, D.C.

[00:15:03] Speaker 00:
Oh, and I'm sorry, I see a frown on your face, and I don't know what it means, but I'm going to just offer, I'm going to offer

[00:15:11] Speaker 00:
The pleadings that I was referring to were appellants said that the Kavanaugh matrix rates were high.

[00:15:16] Speaker 00:
I'm sorry?

[00:15:17] Speaker 00:
Yes, I apologize.

[00:15:20] Speaker 00:
It said the CFC's docket number 158, page 1, footnote 1, and page 9.

[00:15:27] Speaker 00:
Turning back to the expert of appellants, she, during her deposition, testified that she had written an article in which she pointed out the problems

[00:15:38] Speaker 00:
with using the Kavanaugh matrix for purposes of determining proper hourly rates, reasonable hourly rates for Washington DC.

[00:15:47] Speaker 00:
That's found at the CFC docket number 164-1.

[00:15:51] Speaker 00:
She testified that some of the problems with the Kavanaugh matrix included that the matrix addresses the basic consumer oriented legal services that are usually flat fee or usually very simple.

[00:16:06] Speaker 00:
And it measures the inflation increases to these services on a nationwide basis that is not specific to DC.

[00:16:15] Speaker 00:
Dr. Mallowayne's criticisms of Kavanaugh are also found in the Heller decision, which is out of the DC District Court.

[00:16:23] Speaker 00:
Other reasons why the CFC's use of the standard Laffey matrix was appropriate is because, as I said, it comports with the Supreme Court's guiding principles for determining hourly rates.

[00:16:34] Speaker 00:
It provides two things.

[00:16:35] Speaker 00:
It provides prevailing market rates and it's specific to the relevant community.

[00:16:40] Speaker 00:
That's because the standard Laffey matrix is based on DC hourly rates.

[00:16:47] Speaker 00:
The Laffey matrix back in 83 was originally based on DC hourly rates.

[00:16:51] Speaker 00:
They were adjusted yearly based on inflation.

[00:16:54] Speaker 00:
So the laughing matrix, the standard laughing matrix began with DC hourly rates, and it's adjusted annually based on the consumer price index that's specific to Washington DC, which is the relevant community in this case.

[00:17:09] Speaker 00:
The laughing matrix also does something that appellants speak to erroneously.

[00:17:15] Speaker 00:
The laughing matrix for, I mean, the consumer price index for the District of Columbia

[00:17:22] Speaker 00:
addresses inflation rates for goods and services, not just pizza delivery, not just dry cleaning, but goods and services that include legal services.

[00:17:33] Speaker 00:
That's actually indicated in the Salazar decision at 123F sub-second at page 8 on which appellants themselves rely.

[00:17:44] Speaker 00:
So the Lafay Matrix has two basic components.

[00:17:46] Speaker 00:
It has a component that speaks to the relevant community being DC.

[00:17:50] Speaker 00:
And it speaks to the change in inflationary rates that includes legal services.

[00:17:55] Speaker 01:
Let me just stop you there before your time runs out and ask you about this motion to supplement the record.

[00:18:00] Speaker 01:
And if it is the case that you were required to respond to the FOIA request within 20 days, and you took rather than that a year and a half, why isn't it problematic?

[00:18:11] Speaker 01:
Because we don't know whether or not, if they had gotten the information in a timely way, they could have gone back to the Court of Claims and the connection with reconsideration.

[00:18:19] Speaker 01:
and tried to offer that evidence up into the record.

[00:18:22] Speaker 00:
Two responses to that.

[00:18:24] Speaker 00:
What's been submitted by Appellant shows that the

[00:18:27] Speaker 00:
government explained that they didn't receive the original request.

[00:18:30] Speaker 00:
So the time delay between the original request and the second request that was made was just an error.

[00:18:37] Speaker 00:
It's not clear where the original request was.

[00:18:41] Speaker 00:
I'm not sure if the actual date of 20 days, I apologize for that.

[00:18:45] Speaker 01:
I just took it from you.

[00:18:46] Speaker 00:
Yeah, I know.

[00:18:47] Speaker 00:
And I perhaps should know the FOIA dates time frame, but I don't.

[00:18:51] Speaker 00:
But what's significant is there are two things.

[00:18:54] Speaker 00:
The first is there's nothing

[00:18:56] Speaker 00:
that appellants point to in their briefing below or before this court that speaks to the relevance of the government's hours and costs with respect to their fees.

[00:19:07] Speaker 00:
This is a question about their fees.

[00:19:10] Speaker 00:
Nothing has been briefed about.

[00:19:11] Speaker 01:
Wait a minute.

[00:19:12] Speaker 01:
But what if we think, but we haven't decided that.

[00:19:15] Speaker 01:
But what if we think that there's at least an off chance that the court of claims and then we on appeal under an abuse of discretion standard

[00:19:22] Speaker 01:
would say, hey, I thought their 34 hours was way excessive of what they litigated.

[00:19:28] Speaker 01:
And now I'm looking at the other side's time spent.

[00:19:32] Speaker 01:
And it's up there at, what, 48, or whatever the number is.

[00:19:37] Speaker 01:
So it changes my view of really what was an excessive amount of time spent on this case.

[00:19:45] Speaker 01:
It's got to be of some relevance.

[00:19:46] Speaker 01:
There've got to be cases at the district court where in order to evaluate the use of time for one side, they get the records on the other side.

[00:19:54] Speaker 00:
Well, with all due respect, had they made that argument, you'd be right.

[00:19:57] Speaker 00:
That argument's not been made.

[00:19:59] Speaker 00:
But that aside,

[00:20:00] Speaker 00:
There's no reason why appellants couldn't have saw a stay somewhere, saying to one of the courts, we've got this big information, never talked about it before, but now it's a big deal.

[00:20:10] Speaker 00:
And we need to get it.

[00:20:12] Speaker 00:
And we would like for you to stay the proceedings so we can get that information and present it to you for the first time.

[00:20:18] Speaker 00:
That was not done.

[00:20:19] Speaker 00:
There's no indication as to why they felt their hands were tied, simply because the government wasn't able to collect all of the information.

[00:20:25] Speaker 00:
And if you look at the number of cases for which they originally requested this full information,

[00:20:30] Speaker 00:
There are quite a few cases.

[00:20:32] Speaker 00:
I knew the number, but perhaps over 100?

[00:20:36] Speaker 00:
The motion will show that there was a long, or part of the materials, there were many cases.

[00:20:43] Speaker 00:
That was pared down, ultimately.

[00:20:46] Speaker 00:
But I still don't see how the timing of the government, right or wrong, whatever the reason was, I don't know why they, there's no reason, and they often are a reason, as to why they didn't go to the court and say, please stay the proceedings until we receive this material.

[00:21:03] Speaker 00:
I have plenty to say, but are there any particular questions?

[00:21:10] Speaker 02:
I have one question for you.

[00:21:12] Speaker 02:
You mentioned CFC docket 158.

[00:21:14] Speaker 02:
I can't find that particular page you're referring to in the appendix before us.

[00:21:20] Speaker 02:
Do you know if it's in the appendix?

[00:21:22] Speaker 00:
The joint appendix?

[00:21:23] Speaker 00:
There's a problem with the joint appendix.

[00:21:25] Speaker 00:
I just noted, and I called the clerk's office last night and actually called the appellant's office last night, but they were on route, they're flying here.

[00:21:34] Speaker 00:
Pages are missing, which is why I gave you the docket number as opposed to a joint appendix number.

[00:21:40] Speaker 00:
So I apologize.

[00:21:42] Speaker 00:
The only thing I can offer though is that perhaps when you return to chambers, you can go and look at the docket number because it's, if you'll see, there are gaps in the joint.

[00:21:53] Speaker 02:
There's always gaps if the pages aren't cited in the briefs.

[00:21:57] Speaker 02:
In order for the pages to be included in the appendix, they have to actually be cited in the briefs as part of the party's arguments.

[00:22:03] Speaker 02:
Otherwise, there will always be gaps in the appendix.

[00:22:05] Speaker 00:
OK.

[00:22:06] Speaker 00:
Well, this is just part of the summary judgment pleadings.

[00:22:09] Speaker 00:
And I believe, for example, I was certain that Dr. Malawane's testimony from her deposition was supposed to be in the joint appendix, but those pages are just missing.

[00:22:25] Speaker 00:
So I apologize, which is why I offer you docket numbers.

[00:22:32] Speaker 01:
Thank you.

[00:22:39] Speaker 03:
Thank you, Your Honor.

[00:22:40] Speaker 03:
I'll address three very quick points.

[00:22:42] Speaker 03:
Point one, in terms of the issue of the Justice Department's time defending this case, that was extensively discussed in the conduct of the case in a justification for these legal fees.

[00:22:54] Speaker 03:
We repeatedly brought up to Judge Firestone that the reason the fees and the time was so excessive

[00:23:00] Speaker 03:
was because of the conduct of the Justice Department.

[00:23:03] Speaker 03:
And we noted, particularly in the briefing below, as we do here, that the Justice Department's own making this a test case, a scorched earth litigation strategy, on their part, required us to devote the time that we had to spend to it.

[00:23:16] Speaker 03:
Now, what we didn't have, what that supplemental information is, is actually the numbers, the actual hours they spent.

[00:23:22] Speaker 03:
But the issue was certainly before Judge Firestone, and it was there below.

[00:23:25] Speaker 03:
We just couldn't quantify it until they finally answered their FOIA request.

[00:23:29] Speaker 02:
The second- Did you say the timing was 20 days, or is it 120 days?

[00:23:33] Speaker 02:
What does that mean?

[00:23:34] Speaker 03:
It is 20 days.

[00:23:35] Speaker 03:
As my understanding of the FOIA statute, and I believe we cited in our supplemental reply, is that it's 20 days that they have to respond to that.

[00:23:42] Speaker 03:
And as you mentioned, we had one outstanding FOIA request they never responded to.

[00:23:46] Speaker 03:
They now say they lost it or didn't receive it.

[00:23:48] Speaker 03:
We sent it certified mail.

[00:23:50] Speaker 03:
Then finally we get this other request, but we did make it in time that we would still have that information before Judge Firestone entered her final decision.

[00:23:59] Speaker 03:
in the calculation of the fees.

[00:24:01] Speaker 02:
And the original request was filed shortly after the January 2014 decision.

[00:24:07] Speaker 03:
That's my recollection.

[00:24:08] Speaker 03:
They're attached as exhibits to our motion to supplement the record.

[00:24:11] Speaker 03:
Thank you, Your Honor.

[00:24:14] Speaker 03:
Secondly, this question about Dr. Malaway and trying to bring into the discussion that that's evidence that supports the use of the DOJ Laffey rates adjustment.

[00:24:24] Speaker 03:
That's not so.

[00:24:26] Speaker 03:
That's not in the record.

[00:24:27] Speaker 03:
That's not something Judge Firestone considered.

[00:24:29] Speaker 03:
Read her opinion.

[00:24:30] Speaker 03:
Her opinion says the reason I'm adopting these rates is because I found a website, and she cites it in her footnote on the DOJ.

[00:24:38] Speaker 03:
She doesn't mention anything about Dr. Malawane.

[00:24:40] Speaker 03:
And if we do look at Dr. Malawane, she doesn't say what's been represented.

[00:24:44] Speaker 03:
What Dr. Malawane says is that the Delafi matrix for small firms

[00:24:49] Speaker 03:
for little three-member firms in Virginia in the suburbs of Virginia may not be appropriate to the prevailing rate.

[00:24:56] Speaker 03:
That's the qualification she made during her deposition.

[00:24:59] Speaker 03:
In no way does she dispute using the Salazar-adjusted Laffey matrix that we've used in this case on the facts and circumstances of this case.

[00:25:09] Speaker 03:
But most importantly, in this case, the Justice Department admitted

[00:25:14] Speaker 03:
that my firm's hourly rates were in fact consistent with prevailing market rates in Washington DC.

[00:25:21] Speaker 03:
Now my friend was talking and she said how we conceded the point that our normal customary rates at Aaron Fox are somehow less than the Salazar Laffey.

[00:25:32] Speaker 03:
That's correct.

[00:25:33] Speaker 03:
It's very nominally less.

[00:25:35] Speaker 03:
When you add it up out of more than $2 million, our normal rates and the Salazar adjusted Laffey rates

[00:25:42] Speaker 03:
have a difference of about $800.

[00:25:44] Speaker 01:
Just to be clear for purposes of the record, we keep talking about Kavanaugh and you keep talking about Salazar.

[00:25:50] Speaker 01:
Those are one in the same, correct?

[00:25:52] Speaker 03:
One in the same.

[00:25:53] Speaker 03:
And I pick up the reference of Salazar because there's been a series of the Salazar cases.

[00:25:58] Speaker 03:
That's how the Supreme Court referred to it in Purdue.

[00:26:01] Speaker 03:
That's how the Federal Circuit, this court, referred to it in their footnote, mentioning they use Kavanaugh's matrix to make that adjustment.

[00:26:10] Speaker 03:
Let me note, finally, that the

[00:26:13] Speaker 03:
Challenge that we have to judge Firestone adjusting the load star is the challenge not to specific hourly adjustments.

[00:26:20] Speaker 03:
She made about 237 hours that she excluded from the billing for very specific reasons.

[00:26:27] Speaker 03:
We've not challenged that.

[00:26:28] Speaker 03:
What we challenge are these blanket unjustified percentage cuts across one category of fees.

[00:26:37] Speaker 03:
A 10% blanket cut just because there's few properties, a 25% cut

[00:26:43] Speaker 03:
75% cut in the fees for the argument in the Kansas Supreme Court.

[00:26:48] Speaker 03:
There's no reason for it.

[00:26:49] Speaker 03:
There's no statement that you spent 40 hours on a brief.

[00:26:52] Speaker 03:
You should have only spent 20.

[00:26:54] Speaker 03:
It's just I'm going to only give you 25% of your time for that work.

[00:26:58] Speaker 03:
That's work that we certainly did.

[00:27:00] Speaker 01:
And what about the cut she made with respect to some of the plaintiffs winning?

[00:27:04] Speaker 01:
And was it five out of 30?

[00:27:06] Speaker 01:
OK, yeah.

[00:27:06] Speaker 03:
She made a 30% across the board cut because five of the plaintiffs were originally dismissed.

[00:27:13] Speaker 03:
Well, this court reversed Judge Firestone.

[00:27:15] Speaker 03:
And now three of those plaintiffs have been paid and were brought back in the case.

[00:27:20] Speaker 03:
And that kind of adjustment is directly contrary to the Supreme Court's direction in Hensley.

[00:27:25] Speaker 03:
Hensley says, you don't make that kind of percentage adjustment.

[00:27:28] Speaker 03:
We had to spend that time making the same argument for all those plaintiffs, the prevailing plaintiffs.

[00:27:34] Speaker 03:
We're only seeking fees for the prevailing plaintiffs.

[00:27:38] Speaker 03:
Any time that's specific to an individual plaintiff that was dismissed was excluded from the billing request.

[00:27:43] Speaker 03:
The only time that was there while they were in the case, before she dismissed them and later this court reversed,

[00:27:51] Speaker 03:
was time on common issues, which under Hensley and Bloom is time that is compensable.

[00:27:59] Speaker 03:
Finally, we would note the essential point that by no measure can a 73% cut in the lodestar fee that we submitted be considered to be consistent with what Congress intended in the Uniform Relocation Act to enable people such as this to bring their case.

[00:28:17] Speaker 03:
and to have the justice accomplished for their claim for the taking of their property.

[00:28:22] Speaker 03:
The CFC's decision is sustained as it became a standard of this court would literally prevent the bringing of these cases.

[00:28:29] Speaker 03:
Thank you, Your Honor.

[00:28:30] Speaker 01:
Thank you.

[00:28:31] Speaker 01:
And we thank both counsel and the cases submitted.