[00:00:07] Speaker 01:
The final case for argument this morning is 15-3-2-3-3, Howard v. Air Force.

[00:00:37] Speaker 01:
Mr. White, whenever you're ready.

[00:00:49] Speaker 05:
Good morning, Your Honors.

[00:00:51] Speaker 05:
May it please the Court.

[00:00:52] Speaker 05:
My name is Marshall D. White and I represent Petitioner Sherman Howard in appeal from the final decision of the Merit System Protection Board.

[00:01:01] Speaker 05:
In addition to the conceded error by the agency on appeal, the Board's final decision denying

[00:01:07] Speaker 05:
Mr. Howard's motion for attorney fees in part.

[00:01:11] Speaker 02:
Let me interrupt right there so that I can get something straight that's not entirely straight.

[00:01:16] Speaker 02:
There's a concession that the board erred, so this matter's going to go back to the board one way or the other, correct?

[00:01:25] Speaker 02:
With respect to the four hours that we're looking at?

[00:01:30] Speaker 05:
I guess looking at it from that limited basis, that's correct, Your Honor.

[00:01:36] Speaker 01:
Or in theory, the government could just write you a check.

[00:01:38] Speaker 05:
That's exactly right also, Your Honor.

[00:01:41] Speaker 05:
So I wasn't going to just wholeheartedly.

[00:01:43] Speaker 01:
And that's what you're hoping for.

[00:01:45] Speaker 05:
That would be very appreciated.

[00:01:50] Speaker 05:
But wishful thinking is wishful thinking.

[00:01:52] Speaker 05:
But nevertheless, the board's final decision denying in part Mr. Howard's motion for attorney fees should be reversed for the following reasons.

[00:02:00] Speaker 05:
The administrative judge did not provide

[00:02:05] Speaker 05:
legally sufficient factual basis for reducing 56 hours from the hours claimed.

[00:02:13] Speaker 05:
The government may or the agency may know such objection to counsel's experience or the time counsel expended filing submissions with the board.

[00:02:23] Speaker 01:
What's your real beef with the district, with the administrative judge, that she read

[00:02:28] Speaker 01:
14 page submission and she knew your experience and what your hourly rate was and she looked at this and said there is no way that this took 56 hours to prepare and she cut it down to whatever she cut it down to.

[00:02:41] Speaker 01:
Is that what we're here about?

[00:02:42] Speaker 05:
No, I think the other side of that is that she did not look at the issues involved in the agency's compliance notes.

[00:02:52] Speaker 05:
You have to remember that there were eight

[00:02:55] Speaker 05:
issues of non-compliance, this is going to the merits of underlying litigation, but there were eight issues of non-compliance raised in the petition for enforcement.

[00:03:05] Speaker 05:
And they were significant.

[00:03:07] Speaker 05:
And I don't think she, when she went to assess the reasonableness of the attorney fees, she did not look at or carry forward her analysis in making the determination that Mr. Howard was a prevailing party.

[00:03:21] Speaker 05:
She, in her analysis that Mr. Howard was a prevailing party, she acknowledged the substantial errors that the agency of the government made in calculating his back pay award.

[00:03:33] Speaker 05:
But she didn't carry that forward as required under Hensley v. Eckhart, the seminal Supreme Court case on attorney fees.

[00:03:40] Speaker 05:
You're supposed to make a determination as to whether the attorney fees are reasonable in relation to the relief saw.

[00:03:47] Speaker 05:
And if they are substantial, that is, if the relief

[00:03:50] Speaker 05:
obtained is substantial in a case where the claims are interrelated, which there is no dispute here that all the claims of noncompliance are interrelated.

[00:04:01] Speaker 05:
They stem from the same set of transactional facts asserted in the agency's compliance notice than under Hensley.

[00:04:11] Speaker 01:
uh... the fiat should receive a full line i don't know i'm not clear and maybe they're just too many issues in too many things that were fighting over in this case it's hard for me to focus on the one thing she did and that my question to you is this is what you're talking about where she did the analysis with regard to all of the submissions for attorneys fees and then at the end she said and by the way

[00:04:31] Speaker 01:
You really only won on the compliance issues.

[00:04:34] Speaker 01:
You didn't win on anything you spent on the reviewing it and reconsideration.

[00:04:39] Speaker 01:
So I'm just going to chop those fees off.

[00:04:42] Speaker 01:
Is that what you're arguing about here?

[00:04:44] Speaker 01:
No.

[00:04:46] Speaker 05:
I think what Mr. Howard is asking the court to review is the analysis that the administrative judge undertook or did not undertake with respect to the time counsel

[00:05:00] Speaker 05:
reasonably expended in pursuing the relief.

[00:05:06] Speaker 01:
Isn't a judge allowed to review that?

[00:05:09] Speaker 01:
You don't have the right to just give them your time card and say, pay me.

[00:05:13] Speaker 05:
That's your job.

[00:05:15] Speaker 05:
I totally understand that.

[00:05:17] Speaker 05:
But since this morning, I've heard it mentioned a couple of times about jurists.

[00:05:21] Speaker 05:
And I think we have another up-and-coming jurist with respect to Justice Kagan on the Supreme Court.

[00:05:26] Speaker 05:
And she indicated, I believe,

[00:05:27] Speaker 05:
a case-style Fox v. Vice in a 2011 case where a trial judge has discretion, but only when he calls a game by the right rules.

[00:05:35] Speaker 05:
So while the judge has discretion, which I acknowledge, that discretion is not amended.

[00:05:41] Speaker 01:
Well, of course, we can all agree to that.

[00:05:43] Speaker 01:
What are the rules that you violated?

[00:05:45] Speaker 05:
Going back to my original claim of error, under this court's calling in Crombecker v. the American System Protection Board, as well as Wilson v. the Department of Health and Human Services,

[00:05:56] Speaker 05:
The judge's basis for reducing 56 hours from the 160 hours claim was not legally sufficient under the court's holdings.

[00:06:06] Speaker 02:
Is that because of what the judge said when the reduction of the 56 hours took place?

[00:06:12] Speaker 02:
He says, I look at this and I'm basing this on the word count, or page count, and that was her analysis.

[00:06:20] Speaker 02:
Fifty-six hours, fourteen pages, that's only 56 hours.

[00:06:24] Speaker 02:
But she did not do

[00:06:26] Speaker 02:
is analyzed what it took, the amount of issues that it took, the things that Judge Proce is talking about.

[00:06:33] Speaker 02:
She doesn't cite that and just says, page count, hours.

[00:06:39] Speaker 02:
Is there any rule that you know of where attorney's fees are based solely on page count?

[00:06:45] Speaker 05:
Absolutely not.

[00:06:45] Speaker 05:
In fact, this court rejected that.

[00:06:48] Speaker 05:
A similar argument in the Keel versus Department of Transportation, which is another case cited in our brief,

[00:06:53] Speaker 05:
The court rejected that notion and I cited another district court case that really wholeheartedly rejected that type of analysis.

[00:07:10] Speaker 03:
the one finding where the judge below said, I don't think this 14-page document took 50 hours of work, or is reasonable to bill 50 hours of work to this 14-page document.

[00:07:24] Speaker 03:
Was that document the petition for review?

[00:07:26] Speaker 03:
No, it was not.

[00:07:27] Speaker 03:
Which document was it?

[00:07:28] Speaker 05:
That was the original petition for enforcement, which I think goes to Judge Rainer's point, which raised all of the legitimate claims.

[00:07:36] Speaker 05:
You've got eight different claims

[00:07:38] Speaker 05:
of non-compliance here.

[00:07:39] Speaker 05:
We're talking over $100,000 worth of relief.

[00:07:43] Speaker 05:
I mean, this was not a case where the agency did nothing.

[00:07:47] Speaker 05:
This court is cited to a couple different attorney fee cases where the agency didn't do anything before the date of compliance.

[00:07:53] Speaker 03:
This was a case where... On the claims that you did not prevail, right?

[00:07:59] Speaker 03:
Like, you know, you appealed last time and the court publicly determined that you were prevailed.

[00:08:07] Speaker 03:
Isn't it true that the case law says that a judge in assessing an attorney's fees can do an assessment on what was the prevailing party's proportionate level of success in the case?

[00:08:19] Speaker 03:
So therefore, for those claims the party did prevail on, we'll focus there on trying to assess what the reasonable fees ought to be.

[00:08:29] Speaker 03:
But for the other claims in the case that the party did not prevail on,

[00:08:34] Speaker 03:
a judge has the discretion to deny attorneys fees for those claims.

[00:08:39] Speaker 03:
Is that fair to say?

[00:08:40] Speaker 03:
That is fair to say.

[00:08:40] Speaker 03:
And that's part of the analysis here.

[00:08:43] Speaker 03:
In fact, it's a significant part of the fee amount that you still want more on.

[00:08:49] Speaker 03:
Isn't that right?

[00:08:50] Speaker 03:
The provision for review, I guess, is the portion of your case that ultimately went up got denied, and then that denial was affirmed.

[00:09:02] Speaker 03:
The judge concluded that anything related to your petition for review didn't merit getting attorney to speak.

[00:09:12] Speaker 05:
Yes or no.

[00:09:13] Speaker 03:
Are you understanding it correctly?

[00:09:15] Speaker 05:
Not quite, Your Honor.

[00:09:16] Speaker 05:
Yes or no with respect to that.

[00:09:18] Speaker 05:
No, because she actually, in her analysis of the reasonable hours expended, she actually awarded Mr. Howard 25 hours for the petition for review.

[00:09:29] Speaker 05:
So, but then after she, and this goes to the heart of this court's opinion in Bywater's versus United States, after she had determined that Mr. Howard recently expended 25 hours on the petition for review, that did go up to this court and was affirmed on appeal, she thereafter excluded those hours that she had already included in the lodestar calculation.

[00:09:50] Speaker 05:
That is a clear error under the court's holding in Bywater's.

[00:09:53] Speaker 05:
That's just a clear error.

[00:09:54] Speaker 03:
Now, where it's more, but more broadly- Bywater says,

[00:09:57] Speaker 03:
that judges that have to figure out how to calculate attorney's fees can take into account the claims that were won on, the claims that were not won on, and devote and concentrate giving reasonable attorney's fees on just for those claims that were actually won on.

[00:10:15] Speaker 03:
I mean, Bywaters takes that into account.

[00:10:18] Speaker 03:
And so this particular judge did that too.

[00:10:21] Speaker 03:
Now, I understand your point, which is,

[00:10:24] Speaker 03:
She did that analysis after initially coming to some initial reasonable fee amount.

[00:10:31] Speaker 03:
But nevertheless, in terms of the overall analysis, she did the sorts of things that Bywaters permits a judge to do in the sense that you can exclude things that relate to claims that were denied.

[00:10:47] Speaker 05:
I disagree with that characterization of what the administrative judge did in this case, Your Honor, respectfully.

[00:10:53] Speaker 05:
I do not believe the administrative judge looked at the overall results obtained.

[00:10:58] Speaker 05:
That is the key.

[00:10:59] Speaker 05:
You can't focus in on just a narrow part that you did not succeed on.

[00:11:03] Speaker 05:
You're supposed to look at, broadly, the overall relief.

[00:11:06] Speaker 05:
If you read her opinion several times, as I have done, you will not see an analysis of where she looked in the determination of the reasonableness of the attorney fees.

[00:11:15] Speaker 05:
She did that in making her determination on the prevailing party.

[00:11:18] Speaker 05:
determination.

[00:11:19] Speaker 05:
But when you look at the reasonableness of the attorney fee, you can't just slice out a little part that the attorney did not prevail.

[00:11:26] Speaker 05:
That is exactly what the Supreme Court was talking about.

[00:11:28] Speaker 01:
Well, I don't understand that.

[00:11:30] Speaker 01:
I mean, tell me why.

[00:11:31] Speaker 01:
I mean, part of the test under Lodestar is the number of hours reasonably expended.

[00:11:38] Speaker 01:
Now, I agree with Judge Chen that she did this as a two-step, and presumably she should have done it as a one-step.

[00:11:44] Speaker 01:
But if she had done it as a one-step,

[00:11:46] Speaker 01:
Why is that not exactly her job?

[00:11:49] Speaker 01:
She looked at the PFRs, and she said they were not the prevailing party with respect to this whole thing.

[00:11:56] Speaker 01:
So these are not ours reasonably expended by the prevailing party.

[00:12:01] Speaker 01:
I'm not going to award you fees on that portion.

[00:12:04] Speaker 01:
Is a district court not allowed to do that?

[00:12:06] Speaker 05:
Under Heasley, Your Honor, the district court is supposed to make it an overall or a trial form, whichever however we look at it, is supposed to make an overall assessment

[00:12:16] Speaker 05:
of the relief obtained.

[00:12:18] Speaker 05:
It's supposed to be an overall assessment.

[00:12:21] Speaker 05:
You don't have to prevail completely to be awarded full attorney fees.

[00:12:26] Speaker 05:
That's what Hensley holds.

[00:12:28] Speaker 01:
Well, I guess in theory that might be right.

[00:12:29] Speaker 01:
But kind of Bywater, which is a case you rely on, kind of says the opposite.

[00:12:34] Speaker 01:
With the criticism there, the reason we reversed the district court judge in that case was because he got done with his load start calculation.

[00:12:42] Speaker 01:
And then he comes in and he says,

[00:12:43] Speaker 01:
Oh, well, wait a minute.

[00:12:44] Speaker 01:
I noticed they only won 1.2 million in this case and the total amount of attorney's fees I've just awarded is 800,000.

[00:12:50] Speaker 01:
That seems crazy to me.

[00:12:53] Speaker 01:
I'm going to cut the attorney's fees by 50%.

[00:12:55] Speaker 01:
So that's where we reversed the district court because we said you can't come in after the fact and just use this global idea of how much this case was worth.

[00:13:05] Speaker 05:
Right?

[00:13:06] Speaker 05:
Right.

[00:13:06] Speaker 01:
I believe Judge Diacadetic, I believe he wrote the opinion for the court, he went through a thorough review of what... But there the criticism was that you can't stand back and do some global assessment about what you think the value of this case was.

[00:13:19] Speaker 01:
You've got to do the lodestar calculation.

[00:13:22] Speaker 05:
Yeah, that goes to my point, Your Honor.

[00:13:24] Speaker 05:
When the administrative judge was calculating her lodestar figure, she did not do what the district court did not do in Bywars.

[00:13:31] Speaker 05:
That is, you have to consider

[00:13:32] Speaker 05:
the overall results obtained in calculating the low star figure.

[00:13:37] Speaker 05:
Where your argument goes to is just, I believe, plagiarism, dissent in bywaters.

[00:13:42] Speaker 05:
Plagiarism, dissent in bywaters.

[00:13:43] Speaker 05:
That is that you're going to end up with the same number.

[00:13:46] Speaker 05:
Well, Judge Dyke and the majority rejected that.

[00:13:50] Speaker 05:
It needs to go back for the administrative judge, or in that case, the district judge, to assess the overall results in determining the low star calculation.

[00:13:59] Speaker 05:
Because otherwise, you distort

[00:14:02] Speaker 05:
some of the relief that was obtained while focusing in on the limited relief that was not obtained.

[00:14:09] Speaker 05:
And that's exactly what's going on here.

[00:14:11] Speaker 05:
Again, remember, she had already given Mr. Howard 25 hours for the PFR, reasonably expended, and then she reduced that back out.

[00:14:20] Speaker 02:
Correct.

[00:14:20] Speaker 02:
In step one, she awarded 25 hours for the PFR.

[00:14:25] Speaker 02:
Then in step two, she says, well, you didn't win in step one, I mean, on the PFR.

[00:14:30] Speaker 02:
I'm going to reduce you.

[00:14:32] Speaker 02:
But step two, we clearly said in Hensley, you cannot have a downward adjustment unless there's an exceptional circumstance.

[00:14:40] Speaker 02:
And she did not articulate an exceptional circumstance.

[00:14:44] Speaker 05:
She did not do that, Your Honor.

[00:14:45] Speaker 05:
She did not do that at all.

[00:14:46] Speaker 05:
And that, again, she did not articulate a reason why counsel's experience required the expenditure of fewer hours

[00:14:55] Speaker 05:
than what was required by the hours counsel claim.

[00:14:58] Speaker 05:
That's no basis for her downward adjustment of the hours expended based on counsel's experience.

[00:15:04] Speaker 03:
OK, now you're going to a different issue.

[00:15:07] Speaker 03:
On that issue, isn't it reasonable for a judge to conclude that a lawyer with 10 years of experience ought to be able to do a particular task faster than a lawyer with six months of experience?

[00:15:23] Speaker 05:
That needs to be articulated.

[00:15:25] Speaker 05:
that wasn't articulated here.

[00:15:27] Speaker 05:
I mean, that's the whole key.

[00:15:28] Speaker 05:
That's the court's holding in Crumbaker.

[00:15:30] Speaker 05:
That's the court's holding in Wilson.

[00:15:33] Speaker 05:
That's the court's holding in a couple of other cases.

[00:15:35] Speaker 05:
You have to articulate what's the nexus between counsel's experience and why he should have been more efficient.

[00:15:41] Speaker 05:
Now, going to another decision out of the 11th Circuit, Norman versus the Housing Authority of the City of Montgomery, they specifically rejected that.

[00:15:50] Speaker 05:
where you could take counsel's experience and presume that he would be more efficient in getting something done.

[00:15:56] Speaker 05:
Well, the court there held that that should have been reflected in the determination of the reasonable hours, not in the determination of the reasonable hourly rate, not in the determination of the hours claimed.

[00:16:06] Speaker 05:
Because to do both, you're going to double count, which is impermissible.

[00:16:09] Speaker 05:
You're going to double count counsel's experience.

[00:16:11] Speaker 05:
And that is exactly what the administrative judge did in this case.

[00:16:14] Speaker 05:
She considered counsel's experience in determining the reasonable hourly rate, and then she subsequently

[00:16:19] Speaker 05:
A double county counsel is experiencing reducing their hours claimed.

[00:16:24] Speaker 05:
That's impermissible as well.

[00:16:26] Speaker 05:
And those are the main reasons why the board's final decision should be reversed.

[00:16:31] Speaker 05:
And again, the government, my honor, wants to fall back on Hensley, which I think is what we've been discussing quite thoroughly here this morning.

[00:16:39] Speaker 05:
Under Hensley, even when there's a determination that a party has achieved limited success, the administrative judge is required to make a determination

[00:16:49] Speaker 05:
whether or not, not an automatic rejection, which I think is where the court's been going, an automatic rejection of the hours claim for unsuccessful claims, but make a determination whether her lodestar calculation, her resulting lodestar calculation remains a reasonable fee request in relation to the release saw.

[00:17:12] Speaker 05:
And I submit to this court that it does.

[00:17:15] Speaker 05:
I mean, not only her lodestar calculation was $27,000, which is still about $8,000 or more, $9,000 more than what she awarded, but I think the original lodestar amount that Mr. Howard requested was reasonable in relation to the relief obtained.

[00:17:32] Speaker 01:
Okay.

[00:17:32] Speaker 01:
We're going to cede your time.

[00:17:33] Speaker 01:
We'll just stir two minutes.

[00:17:34] Speaker 01:
Thank you very much, Your Honor.

[00:17:36] Speaker 01:
Thank you.

[00:17:46] Speaker 04:
May it please the court, the government respectfully requests that the MSPB's decision be affirmed in its entirety, except for the $1,200.

[00:17:53] Speaker 02:
Can you please speak up?

[00:17:55] Speaker 02:
Move that mic up a little bit.

[00:17:56] Speaker 02:
I apologize.

[00:17:56] Speaker 04:
Except for the $1,200 that the government concedes was not supported by substantial evidence in the record.

[00:18:03] Speaker 01:
Is the government going to write a check on that money, or are we going to have to go back and mitigate?

[00:18:07] Speaker 04:
Your Honor, I believe procedurally what would need to happen is the MSPB would just need to issue a decision

[00:18:15] Speaker 04:
saying $1,200 should be paid to the petitioner.

[00:18:20] Speaker 01:
We don't want to have to deal with another attorney's fees petition.

[00:18:24] Speaker 01:
Understood, Your Honor.

[00:18:26] Speaker 04:
Government feels the same way.

[00:18:28] Speaker 02:
If what you're saying is correct, then isn't the petitioner entitled to additional attorney's fees to force you to disgorge the check?

[00:18:38] Speaker 02:
I mean, you force them to come up here, and now you're telling us

[00:18:42] Speaker 02:
Yes, he deserves a check, but he's got to go down and re-litigate before the board, and then the board's got to say where he's entitled to the money.

[00:18:52] Speaker 04:
Your Honor, I understand attorney fees associated with this appeal would fall under EGIA, and I believe the agency's position in this case has been substantially justified.

[00:19:05] Speaker 04:
The agency did not argue for the specific reduction of the four hours at issue.

[00:19:11] Speaker 04:
The administrative judge made that reduction on her own.

[00:19:16] Speaker 04:
In response to the petitioner's brief on appeal, the government conceded that point because the government understood that based on the reason given by the administrative judge for that particular four-hour reduction on the attorney fee petition, it was

[00:19:34] Speaker 04:
not supported by substantial evidence in the record.

[00:19:38] Speaker 01:
Can we move to what I think is, although we covered a lot of territory with your friend, but the heart of it, at least for me, I think, is the fact that this judge seems to have done a lodestar, which accounted for the PFR, reasonable attorney's fees, and then have done a step two, where she chopped off those fees.

[00:19:59] Speaker 01:
One, is that the way you understand what she did?

[00:20:02] Speaker 01:
Two, why is that consistent with Bywater that seems to say that all of those calculations have to go in the lodestar?

[00:20:10] Speaker 01:
And three, was it harmless error because she was absolutely right that she doesn't have to award fees for that portion of the case where he lost?

[00:20:22] Speaker 04:
Yes, Your Honor.

[00:20:23] Speaker 04:
I do believe that's what she did.

[00:20:24] Speaker 04:
She did make a separate reduction for the results obtained in the second stage.

[00:20:30] Speaker 04:
It is consistent with Bywater's

[00:20:32] Speaker 03:
Bywaters does not say... But do you agree that as a technical matter...

[00:20:37] Speaker 03:
she technically did something wrong.

[00:20:40] Speaker 03:
There were inconsistent climate waters, when bottom water says, the lodestar calculation is the last calculation.

[00:20:47] Speaker 03:
And what she did, plainly, the words say it, she calculated the lodestar, quote unquote, and then she adjusted the lodestar downward through the step two analysis she did.

[00:20:59] Speaker 03:
So as a technical, I'm sorry, so as a technical matter, what she did may not have been

[00:21:07] Speaker 03:
Do you agree that's not consistent with bywaters, although you could nevertheless still make an argument that, as a practical matter, it's still the same analysis?

[00:21:16] Speaker 04:
I do not agree that that second stage was prohibited or precluded by bywaters.

[00:21:22] Speaker 04:
I believe what bywaters says is that if the results obtained, if the calculation of the results obtained

[00:21:29] Speaker 04:
is subsumed in the Lodestar calculation, then there's no reason for a second reduction.

[00:21:34] Speaker 04:
And keep in mind the facts of those cases.

[00:21:36] Speaker 04:
They come out of the facts of cases where there's a bulk percentage multiplier in the second stage.

[00:21:42] Speaker 04:
For instance, Bywaters was, as Chief Judge Prost pointed out, was a 50% reduction.

[00:21:49] Speaker 04:
The Purdue case that Bywaters relies on was a 75% adjustment.

[00:21:53] Speaker 04:
And what the Supreme Court has said and what this court has said

[00:21:57] Speaker 04:
is that that undermines the credibility of the load start.

[00:22:01] Speaker 04:
It was not a calculation like it was done in this case on a line item by line item basis for only unsuccessful issues.

[00:22:09] Speaker 04:
And to get real quick back to Judge Prost's third question, Your Honor, you are correct that it would not make a difference whether the calculation, the 32 hour reduction was done in stage one or stage two.

[00:22:23] Speaker 04:
And one more thing on the

[00:22:25] Speaker 01:
The question is, is it permissible?

[00:22:27] Speaker 01:
I mean, your friend says that notwithstanding that he may have lost uncertain of his claims, that she's supposed to look at the totality of the litigation in terms of winners and losers and not supposed to just say, well, he lost on these two claims, so let's see the amount of time out.

[00:22:44] Speaker 04:
Your Honor, it is permissible.

[00:22:47] Speaker 04:
And to the Bywaters point real quick, after Bywaters, his court in Wagner, which was a 2013 case,

[00:22:54] Speaker 04:
It followed the same two-step approach.

[00:22:57] Speaker 04:
It said that after the calculation of the load start, you then move on to an adjustment for the results obtained.

[00:23:04] Speaker 04:
And Driscoll, which is the MSPB decision that we cited that falls under Hensley, which is still good law, dealt with the more specific factual issue, which is when you have line item by line items reduction for specific issues.

[00:23:21] Speaker 04:
Here, the other thing that is important to note is that the petition for enforcement itself had a combination of successful and unsuccessful issues.

[00:23:32] Speaker 04:
The administrative judge made no reductions based on that filing, which combined both successful and unsuccessful issues.

[00:23:39] Speaker 01:
Right, but then so she finishes her low star calculation and then she says, and now we're going to chop off the portions of that that weren't expended for a winning argument, right?

[00:23:50] Speaker 04:
for winning claims, Your Honor.

[00:23:51] Speaker 04:
And it's different than the situation in which a defendant may raise multiple affirmative defenses and an attorney says, well, you expended all these resources.

[00:24:04] Speaker 01:
So are you saying, I mean, Bywater says repeatedly, we're talking and they have concerns with the amount involved and the results obtained.

[00:24:12] Speaker 01:
Correct.

[00:24:12] Speaker 01:
Is that not what you think what she did for the PFR?

[00:24:15] Speaker 01:
Does that not fall under that category?

[00:24:19] Speaker 04:
with respect to the second reduction that she made for the PFR, the 25 to 0, that is a reduction for the results obtained.

[00:24:28] Speaker 01:
Okay, and Bywater says, later cases have made clear that why the amount involved in results obtained remains a factor to be considered in determining a reasonable attorney's fees.

[00:24:38] Speaker 01:
It cannot be a basis for reducing the Lodestar figure where it could have been taken into account in calculating the Lodestar figure.

[00:24:46] Speaker 01:
Isn't that precisely the mistake that she made?

[00:24:49] Speaker 01:
She did the lodestar without considering it, and then she whacked the lodestar afterwards, right?

[00:24:55] Speaker 04:
No, Your Honor.

[00:24:55] Speaker 04:
I don't think that is precisely the mistake she made.

[00:24:58] Speaker 04:
I don't believe it's a mistake.

[00:25:00] Speaker 04:
And I think the Petitioner's Council referenced the 35 hours to the PFR, and he said she made two separate reductions.

[00:25:09] Speaker 04:
The lodestar reduction, the reasonable hours expended, is

[00:25:13] Speaker 04:
it's clear what she did, and it's, I believe, clear under the case law that you're looking at the reasonableness of hours expended without looking at the results.

[00:25:23] Speaker 04:
So what she did was precisely what she was supposed to do, which is first take a look at the filing itself and see whether the hours expended were reasonable.

[00:25:32] Speaker 04:
And she made one reduction.

[00:25:33] Speaker 04:
She reduced that from 35 to 25.

[00:25:35] Speaker 04:
And then she reduced it all on the results obtained.

[00:25:38] Speaker 04:
I believe that's permissible.

[00:25:40] Speaker 02:
That seems to me to just be contrary to the

[00:25:43] Speaker 02:
to the language that Chief Judge Crost read out of Bywaters.

[00:25:49] Speaker 02:
Bywaters is pretty clear that if you're going to make a downward adjustment to a low start figure, it's rare and only acceptable.

[00:25:56] Speaker 02:
Only in rare and acceptable circumstances.

[00:25:59] Speaker 02:
Then it goes on and says that the very factors involved here, they can be considered.

[00:26:04] Speaker 02:
It cannot be the basis for reducing.

[00:26:06] Speaker 02:
And in this case, it's exactly the basis for reducing.

[00:26:10] Speaker 02:
It's not one of many considerations.

[00:26:13] Speaker 02:
It's the exact reason why she reduced the Loser figure.

[00:26:17] Speaker 02:
Isn't that error?

[00:26:19] Speaker 04:
I don't believe it is, Your Honor.

[00:26:20] Speaker 04:
Again, if you look at Bywaters, I believe Bywaters is talking about when it could have been subsumed in the reasonableness of attorney's fees.

[00:26:30] Speaker 04:
Bywaters was a case where

[00:26:32] Speaker 04:
There was a settlement.

[00:26:33] Speaker 01:
I believe it was a civil rights... We know what that's case about.

[00:26:37] Speaker 01:
I don't understand what you're answering to Judge Raina's question and to mine, frankly.

[00:26:41] Speaker 01:
Do you acknowledge that what she did here is she did the lodestar calculation where she didn't account for the fact that the PFR stuff shouldn't have been included.

[00:26:50] Speaker 01:
So she gets her lodestar and then she takes a reduction on the lodestar as step two.

[00:26:55] Speaker 04:
Yes, Your Honor.

[00:26:56] Speaker 01:
And why is that?

[00:26:58] Speaker 01:
I mean, is the standard not under by water?

[00:27:00] Speaker 01:
If you're going to do that, it has to be exceptional?

[00:27:03] Speaker 04:
Yes, Your Honor.

[00:27:04] Speaker 04:
I believe the exceptionalness, the rare circumstances

[00:27:08] Speaker 04:
That is still the law, as I understand it.

[00:27:11] Speaker 04:
It comes out of these cases with the percentage multipliers.

[00:27:15] Speaker 04:
I believe it did.

[00:27:16] Speaker 03:
Is your theory the case that this is an exceptional case?

[00:27:18] Speaker 03:
That this is one of the rare circumstances where it's totally OK to reduce the Lodestar figure after it's allowed to start to be calculated?

[00:27:27] Speaker 04:
Yes, Your Honor.

[00:27:27] Speaker 04:
I believe it's exceptional in the instance it would be akin to a plaintiff having multiple claims.

[00:27:36] Speaker 04:
this were a regular litigation, plaintiff having multiple claims, plaintiff winning on one claim, losing on the other, filing a motion for reconsideration on the losing claim, let's say at summary judgment or whatever it may be, and then the judge simply knocking out the claims on the motion for reconsideration, which weren't successful.

[00:27:56] Speaker 04:
Again, here, when there was a combination of the successful... Why is that rare?

[00:28:00] Speaker 02:
I mean, that happens in every case.

[00:28:03] Speaker 02:
In every case a judge is looking at,

[00:28:05] Speaker 02:
at the processes, at the paces that the parties went through.

[00:28:09] Speaker 02:
And these petitions for review is one of them.

[00:28:12] Speaker 02:
It's not rare.

[00:28:14] Speaker 04:
I think it's rare that a petitioner is seeking fees for only unsuccessful issues that were... That's different.

[00:28:20] Speaker 02:
Now you're talking about something different.

[00:28:21] Speaker 02:
Now you're talking about the rarity of the allegations of a petitioner, really?

[00:28:26] Speaker 02:
That's not in the... That's not Hensley.

[00:28:29] Speaker 04:
Your Honor, I do believe this is

[00:28:31] Speaker 04:
I believe it falls under a rare case.

[00:28:33] Speaker 02:
It's a rare case in which it's... Let me ask you this question, then.

[00:28:37] Speaker 02:
Another adjustment that was made was a reduction of $56 over $160.

[00:28:42] Speaker 02:
First, let's see if the circumstances she did that, if we can agree on that.

[00:28:50] Speaker 02:
Because I don't agree with you on the exchange we just had before.

[00:28:55] Speaker 02:
Let's check this one out.

[00:28:57] Speaker 02:
All right.

[00:28:57] Speaker 02:
So she reduced $56 out of $160 on the basis

[00:29:01] Speaker 02:
of page counting.

[00:29:08] Speaker 02:
Is that correct?

[00:29:09] Speaker 04:
I don't believe that was the basis for a reduction.

[00:29:11] Speaker 04:
I believe she gave two bases for her reduction.

[00:29:14] Speaker 02:
Did she make any reduction on the basis of page counting?

[00:29:17] Speaker 04:
She made one reference to page counting.

[00:29:19] Speaker 02:
Then that's the one I'm talking about.

[00:29:20] Speaker 02:
Okay.

[00:29:20] Speaker 02:
Okay.

[00:29:21] Speaker 02:
So she did make a reduction on the basis of page counting.

[00:29:25] Speaker 02:
Is that permissible?

[00:29:26] Speaker 04:
Yes, Your Honor.

[00:29:27] Speaker 04:
Yes, Your Honor.

[00:29:27] Speaker 04:
The only cases cited by petitioners... How can we determine

[00:29:31] Speaker 02:
How can you determine the amount of labor, the amount of work on the basis of page count?

[00:29:36] Speaker 02:
Suppose I ask you, should I go bomb my neighbor?

[00:29:42] Speaker 02:
And you go out and you hire experts and you hire bomb technicians and explosive experts and sniffing dogs and everything and you come back and you hand me, after weeks of this type of work, you hand me a document that says no.

[00:29:57] Speaker 02:
It might just say that, well, gee, this isn't worth much.

[00:30:00] Speaker 02:
I'll give you a dollar.

[00:30:02] Speaker 04:
No, Your Honor.

[00:30:02] Speaker 04:
I don't believe you can... I agree with Your Honor that a reduction simply based on page count is somewhat trivial, but that is not what the Court did.

[00:30:12] Speaker 02:
Not trivial.

[00:30:12] Speaker 02:
Is it error?

[00:30:14] Speaker 04:
I don't believe, Your Honor.

[00:30:15] Speaker 04:
I don't believe specifically it's error.

[00:30:17] Speaker 04:
I don't believe the petitioner has cited any cases that say it's error.

[00:30:20] Speaker 04:
He cites two cases, the Nikhil case and the Nikhil case

[00:30:26] Speaker 02:
What he's saying that's air in this case, cite me cases where he's wrong, that this court has said that it's permissible for an administrative law judge to reduce dollars on the basis of a page number.

[00:30:39] Speaker 04:
I'm not aware of a case that says specifically you can cite a page number and that is fine.

[00:30:45] Speaker 04:
I do know many district court judges, many district court cases do it.

[00:30:50] Speaker 04:
We've cited three, the government cited three in its response brief.

[00:30:53] Speaker 04:
And in the reply, the petitioner did not distinguish those cases or address those cases.

[00:30:58] Speaker 04:
So while the two cases that that petitioner cited for the page count argument are both cases in which a court tried to take one brief and divide between successful and unsuccessful issues in the same brief,

[00:31:15] Speaker 04:
Here, when the court had that opportunity to do that in the petition for enforcement itself, she did not do that.

[00:31:22] Speaker 04:
She did not make any reductions based on page counts devoted to unsuccessful issues.

[00:31:30] Speaker 01:
No, but all she said was, I mean, am I missing something?

[00:31:33] Speaker 01:
She says, still, I find that even though the case was required substantial analysis, complex, blah, blah, blah,

[00:31:40] Speaker 01:
Still, I find that 50 hours for preparing and filing a PFE that amounted to just 14 pages was not reasonable given Mr. White's experience.

[00:31:49] Speaker 04:
Yes, Your Honor.

[00:31:50] Speaker 04:
She says that.

[00:31:51] Speaker 01:
In the cases that you cite that relied on page numbers, was the analysis and the justification as thin as that?

[00:31:57] Speaker 04:
Frankly, it wasn't that more detailed.

[00:31:59] Speaker 04:
I don't believe it was any more detailed.

[00:32:02] Speaker 04:
Two points, though, on that.

[00:32:04] Speaker 04:
One, with respect to

[00:32:08] Speaker 04:
With respect to the page count reduction, when we look at only the reduction, the 50 hours to the 20 hours, what we don't look at is the 9 out of 14 entries that she didn't reduce.

[00:32:25] Speaker 04:
For instance, there was one entry 10 hours that was reviewing the agency's compliance.

[00:32:32] Speaker 04:
before the PFE was filed.

[00:32:34] Speaker 01:
Well, that's not before us on appeal.

[00:32:36] Speaker 01:
I mean, I don't understand.

[00:32:37] Speaker 01:
That's not an issue before us.

[00:32:39] Speaker 01:
You haven't filed a counterclaim on that issue.

[00:32:42] Speaker 01:
So why should we be looking at those questions?

[00:32:44] Speaker 04:
Because it goes to when you look at, I believe it goes to Judge Raina's hypothetical.

[00:32:49] Speaker 04:
When you're looking at just the brief itself and you're looking at just the page number, whether that's permissible or whether that's

[00:32:58] Speaker 04:
that's trivial and whether that really goes to what the Petitioners' Council had to do to prepare that particular document, the review area.

[00:33:09] Speaker 04:
I see that the light is on with just one final thought.

[00:33:15] Speaker 04:
Any issues between any problems with distinguishing time between clerical

[00:33:22] Speaker 04:
tasks or other tasks is a problem of the petitioner's phone making.

[00:33:26] Speaker 04:
On PA 40 of the record, petitioner filed one page itemized spreadsheet.

[00:33:36] Speaker 04:
The government objected to that and said that there were blocked billings and petitioner addressed two sentences on PA 117 in his reply.

[00:33:45] Speaker 01:
Did the administrative judge refer to the deficiency in his plea?

[00:33:50] Speaker 04:
I believe that's inherently in the fact that tasks were both for preparation and filing of documents.

[00:34:00] Speaker 04:
That's two sides of the same coin, if you will.

[00:34:03] Speaker 01:
Thank you.

[00:34:04] Speaker 04:
Thank you, Your Honor.

[00:34:04] Speaker 01:
Thank you.

[00:34:06] Speaker 01:
I'll give you two minutes of rebuttal if you need it.

[00:34:09] Speaker 01:
Yes, Your Honor.

[00:34:10] Speaker 05:
Yes, just a couple of issues I'd like to address.

[00:34:12] Speaker 05:
Thank you very much.

[00:34:15] Speaker 05:
Your Honor, I think the last point the Postal Council was raising

[00:34:19] Speaker 05:
There was no finding of inadequate documentation with respect to counsel's motion for attorney fees.

[00:34:25] Speaker 05:
I think that's what he's raising with respect to saying it's just one page where I listed out.

[00:34:29] Speaker 05:
There was no finding with respect to inadequate documentation.

[00:34:33] Speaker 05:
He raised another issue with respect to a later case.

[00:34:36] Speaker 05:
I believe it was Stile and Waggon versus Shuseki.

[00:34:38] Speaker 05:
which came out to biowaters, if there's any issue with respect to which case he's controlling his biowaters because it preceded WAG, which I don't believe there's any conflict, but to the extent there is, biowaters control.

[00:34:50] Speaker 05:
Was WAG no presidential opinion?

[00:34:52] Speaker 05:
Yeah, it was a presidential opinion, but he cited it in his argument just now.

[00:34:58] Speaker 05:
I think the court has, if this case to your, I think your discussion Judge Wren, if this case is an exception, the exception swallows the rule in Bywaters.

[00:35:10] Speaker 05:
I mean, this case is not an exceptional case at all.

[00:35:13] Speaker 03:
Getting back to the 14-page document inquiry, I'm looking here at the appendix of page 11 and I see that you're taking into account your level of experience,

[00:35:25] Speaker 03:
about complexity of the issues and the length of the document, which is 14 pages.

[00:35:36] Speaker 03:
What more would you want the judge to say?

[00:35:39] Speaker 03:
Let's say, hypothetically, we've remanded it back and say, that's not enough.

[00:35:44] Speaker 03:
You need to do more.

[00:35:46] Speaker 03:
What more would actually be sufficient of, in your own eyes, in terms of adequately substantiating the determination that there were too many analysts?

[00:35:57] Speaker 00:
Just the analysis.

[00:35:58] Speaker 03:
I mean, on merits, obviously, you feel differently.

[00:36:00] Speaker 03:
But what is the appropriate level of analysis that's required when we're doing these line-by-line negations here?

[00:36:09] Speaker 05:
Hypothetically speaking, Your Honor, she could say this is Mr. White's tenth petition for enforcement.

[00:36:14] Speaker 05:
I mean, given she's going to get into experience, if she was doing, this is Mr. White's tenth petition for enforcement by now.

[00:36:22] Speaker 05:
He knows how to address all issues in a petition for enforcement.

[00:36:25] Speaker 05:
This 14 pages, given Mr. White's experience, I don't believe it took 50 hours.

[00:36:33] Speaker 05:
She just doesn't have that background, frankly.

[00:36:35] Speaker 05:
And that's why this is legally insufficient under the courts holding Cronbaker.

[00:36:39] Speaker 05:
I mean, what she said here on page 11, if you take a look at the courts holding Cronbaker, is almost verbatim, and the court rejected it, out of hand.

[00:36:48] Speaker 05:
And she did that for 56 hours across the board, task by task.

[00:36:53] Speaker 05:
And that was error.

[00:36:55] Speaker 05:
That was error.

[00:36:55] Speaker 05:
So while it may not change, she is required to articulate a reason for those reductions that meets the legally sufficient standard set out in Hensley.

[00:37:06] Speaker 05:
A clear and concise explanation of the reasons for the field war.

[00:37:11] Speaker 05:
Let's see what else I want.

[00:37:12] Speaker 01:
So just to dig it down a little deeper, because I'm having the same question.

[00:37:15] Speaker 01:
I can't see what more she

[00:37:17] Speaker 01:
would have said under the circumstances.

[00:37:19] Speaker 01:
This is a line item.

[00:37:20] Speaker 01:
I mean, some of these attorney's fees cases are voluminous.

[00:37:24] Speaker 01:
And we don't want to set a standard that a district court judge has to write a 300-page opinion in order to satisfy us that she's got sufficient reasoning.

[00:37:33] Speaker 01:
So aside from the fact that you're experienced, I don't think you would dispute that.

[00:37:38] Speaker 01:
She says, based on his experience, she obviously read the document.

[00:37:42] Speaker 01:
And she said, based on your experience, the number of cases you had, I don't think it was reasonable.

[00:37:47] Speaker 01:
to charge this much money.

[00:37:49] Speaker 01:
I'm really not hearing from you on what more she could say to give you a fulsome analysis.

[00:37:56] Speaker 05:
First of all, I don't think she should have reduced it.

[00:37:58] Speaker 05:
I guess that on the merits goes to Judge Chien's point.

[00:38:00] Speaker 05:
I don't think she should have reduced it on the merits.

[00:38:02] Speaker 05:
So I can't come up with an answer why she should reduce it.

[00:38:05] Speaker 01:
Well, what would she have to say if she wanted to reduce it?

[00:38:07] Speaker 05:
That's my question.

[00:38:08] Speaker 05:
I'm sorry?

[00:38:09] Speaker 05:
Yeah.

[00:38:09] Speaker 05:
Well, I mean, I'm not trying to be judgmental to that extent.

[00:38:13] Speaker 05:
But I mean, she reduced the hours.

[00:38:14] Speaker 05:
She came up with this conclusory

[00:38:17] Speaker 05:
uh... reason for doing it is just is just doesn't meet the standard now i can't articulate a reason uh... that would be this is a sufficient standard when i'm obviously want to be on the self-interest i want to give it a reason for her uh... to meet the standard but then you're giving us you know then we're shooting in a dark room here we need to know we're not going to reverse her unless we know what at a minimum what your conception of what is an adequate

[00:38:45] Speaker 03:
basis for reducing fees for this particular line item.

[00:38:50] Speaker 03:
What could she have said she should have said that she did not say to justify?

[00:38:56] Speaker 05:
Well, I think with respect to the limited discretion, unless there was some duplication of effort, some padding, which is obviously not a finding in this case, she doesn't have any discretion to reduce those hours.

[00:39:11] Speaker 05:
There's no discretion there.

[00:39:12] Speaker 01:
So what if you were charged 216 hours for a 14-page PFO?

[00:39:17] Speaker 05:
I think that goes to some comments about maybe being overly lawyer, cases being overly lawyer.

[00:39:23] Speaker 05:
I think this court has rejected cases like that.

[00:39:24] Speaker 05:
You just can't make conclusory comments that the case was overly lawyer and not award fees.

[00:39:30] Speaker 02:
Earlier you had mentioned the lack of a nexus.

[00:39:35] Speaker 02:
And here, when you look at the amount of time spent on a particular matter,

[00:39:42] Speaker 02:
and there's a general standard in the legal profession with respect to that amount of time, etc.

[00:39:48] Speaker 02:
I don't know if there's the same type of standard with respect to page count.

[00:39:54] Speaker 02:
We have very experienced lawyers that appear before our court, and they'll very easily produce a hundred page document if you let them, and others who can say the same thing in five pages.

[00:40:07] Speaker 02:
I have not come across a nexus, and I don't see any case that establishes that there is such a nexus between page count and the expertise of the attorney.

[00:40:17] Speaker 02:
And that's something that perhaps an LLJ can put in her analysis when she's making these type of determinations.

[00:40:25] Speaker 05:
I think you're correct, Your Honor, and I think the great rate of authority, the authority that I cited in my brief, in respect to the authority he cited in his brief with regard to page count is obviously not controllable.

[00:40:34] Speaker 02:
Let me ask you this last question.

[00:40:36] Speaker 02:
So the money that, on the, what is it, $1,800?

[00:40:40] Speaker 02:
The four hours, I think, did you talk about the four hours?

[00:40:43] Speaker 05:
I think that's $1,200, Your Honor.

[00:40:45] Speaker 02:
Okay, and there's been an agreement, there's a concession of the government, that that money is owed you?

[00:40:51] Speaker 02:
Only on appeal, and I think you raised that point.

[00:40:53] Speaker 02:
I had to write a brief to obviously... That concessions only come up on appeal?

[00:40:56] Speaker 02:
Right.

[00:40:56] Speaker 02:
Well, I would hope that the government issues this check immediately.

[00:41:00] Speaker 02:
We're dealing with our men and women in service on these types of issues.

[00:41:06] Speaker 02:
And once I think, once the government determines that somebody is rightfully due a certain sum,

[00:41:14] Speaker 02:
I think they should be given that sum and not have to go back down to the board and plead to the board and have the board order you to make that type of initial decision.

[00:41:27] Speaker 01:
Thank you very much, Your Honor.

[00:41:29] Speaker 01:
That concludes the argument.

[00:41:30] Speaker 01:
Thank both sides.

[00:41:31] Speaker 01:
The case is submitted.

[00:41:32] Speaker 01:
That concludes our proceedings for this morning.

[00:41:35] Speaker 00:
All rise.