[00:00:31] Speaker 02:
Okay, the next argued case is number 16, 2661, Rumsey against the Department of Justice.

[00:00:39] Speaker 02:
Mr. Burka.

[00:00:45] Speaker 00:
Thank you, Your Honor.

[00:00:46] Speaker 00:
If it please the Court, I'm Robert Burka, counsel for the petitioner, Alyssa Rumsey.

[00:00:52] Speaker 00:
She is a federal employee whistleblower who was subject to reprisals for which

[00:00:58] Speaker 00:
The merit board found she was subject to prohibited personnel actions for which corrective action was ordered.

[00:01:08] Speaker 00:
The issue here today is she has not been reimbursed for attorney's fees paid to her principal counsel prior to my coming into the case.

[00:01:18] Speaker 03:
Just a point of clarification.

[00:01:21] Speaker 03:
I understand from the record that there were two elements of relief that she was granted or that was found to be

[00:01:28] Speaker 03:
a problem, which include the telework agreement and then also a performance rating.

[00:01:34] Speaker 03:
Am I correct in understanding that?

[00:01:36] Speaker 03:
Yes, that's correct.

[00:01:38] Speaker 00:
OK, thank you.

[00:01:38] Speaker 00:
And those have been resolved.

[00:01:39] Speaker 00:
The relief for those are not before this court, although there is an issue with respect to attorney's fees with respect to the performance rating.

[00:01:49] Speaker 00:
Yes.

[00:01:49] Speaker 00:
Also not before this court.

[00:01:51] Speaker 00:
OK.

[00:01:51] Speaker 00:
At least not at this time.

[00:01:54] Speaker 00:
The issue here is whether, given the statutory requirement,

[00:01:59] Speaker 00:
that corrective action shall involve attorney's fees and an award of attorney's fees, whether an award for Beth Slavitt's time, who was counsel.

[00:02:11] Speaker 00:
She was the only counsel from roughly October 2008 to June of 2011.

[00:02:16] Speaker 00:
And then after 2011, until I replaced her, she was the chief counsel and had assistant counsel.

[00:02:24] Speaker 00:
The question is, could an attorney's fee award be zero

[00:02:28] Speaker 00:
based on her sloppy record keeping and inadequate record keeping.

[00:02:31] Speaker 01:
I guess what the board is suggesting here is that what your client should have done is once the fee dispute was resolved, she should have filed something which said, okay, these are the items which are genuine and reasonable and reimbursable, and that she didn't do that.

[00:02:56] Speaker 00:
You have to understand the chronology here.

[00:03:00] Speaker 00:
Ms.

[00:03:00] Speaker 00:
Slavitt precipitated a fee arbitration.

[00:03:04] Speaker 00:
I moved to stay it pending the outcome of the proceedings before the board.

[00:03:13] Speaker 00:
It was initially stayed, but the stay was not continued and I was forced to go to arbitration.

[00:03:18] Speaker 00:
Parallel to that, the administrative judge ruled

[00:03:25] Speaker 00:
that I had not vouched for her time.

[00:03:28] Speaker 00:
And she announced that she, the administrative judge, announced a fee award of zero.

[00:03:34] Speaker 00:
While the matter was pending before the board, the arbitration was resolved.

[00:03:41] Speaker 00:
And we submitted to the board the information about what happened at the arbitration at the board's request.

[00:03:47] Speaker 00:
So that information was before the board.

[00:03:49] Speaker 01:
And I had argued before the board

[00:03:51] Speaker 01:
So my question is about the additional step of saying, okay, here's the fee award, $200,000, whatever it was, and here are the time records that reasonably support that claim and please award me that for the time that my attorney reasonably spent on this.

[00:04:17] Speaker 01:
And that's not here, right?

[00:04:19] Speaker 01:
You didn't do that.

[00:04:21] Speaker 01:
What I argued to the board.

[00:04:24] Speaker 01:
Not argued, but what was the evidence that was submitted about the reasonableness of the fees after the settlement of the fees.

[00:04:33] Speaker 00:
The result of the settlement, the fact of the settlement, the amount of the settlement, the details of the settlement were submitted to the board.

[00:04:40] Speaker 00:
No, no, no, no.

[00:04:40] Speaker 01:
I understand that, but that's not, it seems to me, sufficient to show the reasonableness of the fees.

[00:04:48] Speaker 01:
I think what the board is saying, rightly or wrongly,

[00:04:51] Speaker 01:
is that after that happened, you should have come in and said, here's why our claim is $200,000 and why that's reasonable, and reviewing the time records and vouching for the reasonableness of the claim.

[00:05:07] Speaker 01:
That didn't happen, right?

[00:05:09] Speaker 01:
Actually, Your Honor, I believe it did happen.

[00:05:11] Speaker 01:
Okay, where?

[00:05:11] Speaker 00:
Do I find that in the record?

[00:05:13] Speaker 00:
Both before the administrative judge and before the board, I argue that the amount actually paid Ms.

[00:05:20] Speaker 00:
Slavitt

[00:05:21] Speaker 00:
should form the basis of a reasonable fee.

[00:05:23] Speaker 01:
Yeah, but that wasn't my question.

[00:05:25] Speaker 01:
My question is, apart from that, did she submit something which said, here's where we find the $200,000 worth of reasonable fees in Ms.

[00:05:37] Speaker 01:
Slavitt's billing records?

[00:05:39] Speaker 01:
And she didn't do that.

[00:05:40] Speaker 01:
That's correct.

[00:05:42] Speaker 01:
That's the problem, right?

[00:05:46] Speaker 00:
Well, the nature of the resolution before the Arbitration Board did not break it down that way.

[00:05:55] Speaker 00:
It gave a total number.

[00:05:56] Speaker 00:
From that total number, one can determine the number of reasonable hours that we thought were correct.

[00:06:04] Speaker 00:
I'd like to also focus, if I can for a moment, on the Slimford case, which the panel brought to our attention late last week.

[00:06:12] Speaker 00:
And by the way, thank you for doing so.

[00:06:14] Speaker 00:
I think that case basically says what I'm trying to say to you now and what I've said in our brief.

[00:06:18] Speaker 00:
And that is, where there's inadequate record keeping, that does not mean that there should be no award.

[00:06:26] Speaker 00:
It simply means the award should be reduced.

[00:06:30] Speaker 00:
We had the obligation to show a right to an attorney's fee award.

[00:06:35] Speaker 00:
We did so when corrective action was ordered.

[00:06:38] Speaker 00:
We had an obligation to bear the burden of going forward.

[00:06:41] Speaker 00:
We did that when we presented

[00:06:42] Speaker 00:
Ms.

[00:06:43] Speaker 00:
Slavitt's hours.

[00:06:45] Speaker 00:
And Ms.

[00:06:46] Speaker 00:
Slavitt, by the way, attempted to appear before the board to explain her billing records and was denied both formally by the board and informally by the agency.

[00:06:56] Speaker 00:
What was the basis for that?

[00:07:00] Speaker 03:
I don't know.

[00:07:01] Speaker 03:
You don't know why it was denied?

[00:07:03] Speaker 00:
Well, it's on page 89 of our appendix, I believe.

[00:07:07] Speaker 00:
And the board in a footnote simply said her motion to intervene to protect her fee was denied.

[00:07:14] Speaker 00:
I think it's one sentence.

[00:07:15] Speaker 00:
It may be two.

[00:07:19] Speaker 00:
Okay.

[00:07:19] Speaker 00:
So I basically am arguing to you that consistent with the language in Slimfold, there was an obligation, an ability of the board to determine a reasonable fee.

[00:07:33] Speaker 03:
Even if it wasn't the 11% reduction that you were advocating based on the amount that she paid?

[00:07:39] Speaker 00:
Well, we argued 11%.

[00:07:41] Speaker 00:
The agency itself argued a different amount of being reduced.

[00:07:46] Speaker 00:
And I think either of those would have been perfectly satisfactory.

[00:07:49] Speaker 00:
I suppose the board could have come up with another number and have been reasonable as well.

[00:07:53] Speaker 00:
What I would argue to you is zero is not reasonable.

[00:07:58] Speaker 00:
That's why we're here.

[00:08:02] Speaker 00:
We have presented to this court two methods of calculating the attorney's fees.

[00:08:08] Speaker 00:
There's three basic sets of data necessary to calculate the fee.

[00:08:15] Speaker 00:
First is the number of hours.

[00:08:17] Speaker 00:
The second is a reasonable rate.

[00:08:19] Speaker 00:
And third is the multiplier.

[00:08:22] Speaker 00:
Two of those have already been resolved by the board or else have not been challenged by the agency on appeal here.

[00:08:30] Speaker 01:
What happened in the fee proceeding in the DC bar arbitration?

[00:08:34] Speaker 01:
Was that basically an issue about the reasonableness of the fees that were being charged?

[00:08:41] Speaker 00:
It was a slightly different proceeding, Your Honor.

[00:08:44] Speaker 00:
It's non-public.

[00:08:48] Speaker 00:
But basically, there was an issue as to Ms.

[00:08:52] Speaker 00:
Slavitt's performance.

[00:08:54] Speaker 00:
And there were issues as to her reasonable ability.

[00:08:59] Speaker 00:
So it was similar to but not identical to the proceeding before the board.

[00:09:02] Speaker 00:
Reasonable ability in the sense of spending too much time?

[00:09:06] Speaker 00:
That's one of it.

[00:09:07] Speaker 00:
The other is on matters that she spent time on that went beyond the issues covered by the Whistleblower Act.

[00:09:15] Speaker 01:
And in the course of that proceeding, did your client identify the time charges that were not reasonable?

[00:09:24] Speaker 00:
We were in the process of doing that when the case settled.

[00:09:31] Speaker 00:
Okay.

[00:09:32] Speaker 00:
Before this board, before this court today though, we have no challenge to the attorney fee rate that Ms.

[00:09:40] Speaker 00:
Slavitt called for in her retention agreement.

[00:09:45] Speaker 00:
And I don't think there's any argument about the multiplier point four that the board ordered.

[00:09:50] Speaker 00:
We certainly don't challenge it here.

[00:09:52] Speaker 00:
I'm happy with it, but we don't challenge it.

[00:09:54] Speaker 00:
So the only real issue it seems to me for determining a fee award

[00:09:59] Speaker 00:
is the number of hours.

[00:10:00] Speaker 00:
And we have the agency's own admission as to the number of reasonable hours here, which they came up with 691, having lopped off about 153.

[00:10:10] Speaker 01:
I'm not sure that there's such an admission.

[00:10:13] Speaker 01:
Where do you find that admission in the record?

[00:10:16] Speaker 00:
Pages 288 to 93 of our appendix, Your Honor.

[00:10:20] Speaker 00:
That constitutes extra

[00:10:23] Speaker 00:
from their filings before the administrative judge.

[00:10:25] Speaker 01:
Yeah, but I've read their filings, which you don't include in the appendix, before the administrative judge.

[00:10:32] Speaker 01:
And in at least one of those filings, they say that no fee should be awarded because of the failure to document the reasonableness of the fees.

[00:10:43] Speaker 01:
There are two filings, and one of them makes that point.

[00:10:47] Speaker 01:
I think you are going a bit too far in suggesting that they agreed that

[00:10:53] Speaker 01:
some portion of the fees was reasonable.

[00:10:57] Speaker 00:
I was actually only referring to the hours.

[00:10:59] Speaker 00:
That's what I mean, the hours.

[00:11:02] Speaker 00:
My recollection of the proceeding before the administrative judge was that the agency took the position that no fee could be awarded because of the conflict of interest statutes.

[00:11:13] Speaker 01:
They did say that, but they also said that no fee should be awarded because of the failure to document reasonableness.

[00:11:20] Speaker 01:
I just don't recall that before the administrative judge, Your Honor.

[00:11:29] Speaker 03:
Did you or at any time, and I don't recall if it's in your blue brief, go through Ms.

[00:11:34] Speaker 03:
Slavitt's records and identify those circumstances where it might be reasonable?

[00:11:39] Speaker 03:
I mean, in the decision below, we saw examples where it was found to be unreasonable, but presumably

[00:11:48] Speaker 03:
You think there's examples where they were reasonable.

[00:11:51] Speaker 03:
Do you have any of those?

[00:11:53] Speaker 03:
Could you cite those to us?

[00:11:54] Speaker 03:
No, I can't.

[00:11:56] Speaker 00:
OK.

[00:11:56] Speaker 00:
I would like to reserve the rest of my time unless there are questions now.

[00:12:01] Speaker 02:
All right.

[00:12:02] Speaker 02:
Let's hear from the other side.

[00:12:12] Speaker 02:
Ms.

[00:12:12] Speaker 02:
Stern.

[00:12:14] Speaker 04:
May it please the court.

[00:12:16] Speaker 04:
I'd like to begin by directing the court's attention to appendix page 172.

[00:12:20] Speaker 04:
And I quote, and this is from Ms.

[00:12:24] Speaker 04:
Rumsey's supplement to her motion for fees before the board.

[00:12:30] Speaker 04:
Quote, Ms.

[00:12:30] Speaker 04:
Rumsey takes care to ensure that it is understood that the views in the declaration of Beth S. Slavitt are solely those of Ms.

[00:12:37] Speaker 04:
Slavitt.

[00:12:38] Speaker 04:
In many respects, Ms.

[00:12:39] Speaker 04:
Rumsey's positions diverge from those expressed by Ms.

[00:12:42] Speaker 04:
Slavitt.

[00:12:42] Speaker 04:
including, but not limited to, Ms.

[00:12:44] Speaker 04:
Slavitt's interpretation of her retention agreement with Ms.

[00:12:47] Speaker 04:
Rumsey, as well as the hours, time charges, and receipts from Ms.

[00:12:52] Speaker 04:
Rumsey during the course of the 2008 to 2011... Because is it an admission that the hours should be zero, is it?

[00:13:00] Speaker 04:
It is not an admission that the hours should be zero.

[00:13:03] Speaker 04:
It is not a representation that any hours are reasonable.

[00:13:08] Speaker 04:
It does not identify any hours as being reasonable.

[00:13:11] Speaker 04:
It simply submits

[00:13:13] Speaker 04:
Ms.

[00:13:13] Speaker 04:
Slavitt's invoices and says, I don't stand by them.

[00:13:17] Speaker 04:
In fact, I disagree with them.

[00:13:19] Speaker 04:
It is the applicant's burden, the Supreme Court has said, is the applicant's burden to establish the reasonable number of hours.

[00:13:25] Speaker 04:
On this record, the board, the administrative judge, and then the full board agreed that it was impossible to determine the reasonable number of hours.

[00:13:35] Speaker 04:
Ms.

[00:13:35] Speaker 04:
Rumsey, this case really is about meeting that burden on the applicant.

[00:13:40] Speaker 02:
Ms.

[00:13:40] Speaker 04:
Rumsey simply failed to meet that burden.

[00:13:43] Speaker 02:
If your counsel says, I spent 20 hours on this, how can the client say you should have done it in 12?

[00:13:52] Speaker 04:
I'm not saying the client has to say that.

[00:13:54] Speaker 04:
But if the client is going to affirmatively disavow and state that she disagrees with the invoices as submitted by her attorney, then at a minimum to meet her burden of establishing the reasonableness, she can identify those hours that she disagrees with.

[00:14:12] Speaker 04:
and say, these are the hours I disagree with, the remaining I agree with.

[00:14:16] Speaker 04:
But she specifically affirmed them.

[00:14:18] Speaker 04:
This is a very unique case where the applicant specifically is submitting her attorney fees and then affirmatively saying, I don't agree with them.

[00:14:27] Speaker 02:
I don't think we've ever seen that in an attorney's fees case where the client has had the burden to say that it took the lawyer too long to perform a certain function.

[00:14:40] Speaker 02:
And I'm not saying that is a burden, but we have in every case... That's not what you're saying?

[00:14:44] Speaker 02:
No, I'm saying that we have in every... What do you expect the client to come forward with in this particular case?

[00:14:53] Speaker 04:
In this particular case, because Ms.

[00:14:56] Speaker 04:
Rumsey took the step of affirmatively disavowing her attorney's billings, then she did take on the burden of saying,

[00:15:04] Speaker 04:
These are the hours that are not reasonable and these are the hours that are.

[00:15:09] Speaker 04:
In most cases, we don't have an applicant.

[00:15:12] Speaker 04:
In fact, I am frankly not aware of any other case where an applicant for fees puts forward her attorney's invoices and specifically disavows them.

[00:15:21] Speaker 04:
But in this case, that's what she did.

[00:15:22] Speaker 03:
What about the fact that, true enough, the government may have said that, you know, a word of zero is appropriate in this case.

[00:15:32] Speaker 03:
But alternatively, the government did come up with a proposal for a reasonable number of hours and proposed 691.

[00:15:39] Speaker 03:
So doesn't that show that it's not that hard that people can look at these records, the court can look at the records, or at least know that this was so counsel for a period of years?

[00:15:50] Speaker 03:
and that there must be some reasonable number of hours when the statute says that some attorney fees shall be awarded?

[00:15:59] Speaker 04:
Well, with due respect, I would disagree with that characterization of what the agency did in this case.

[00:16:03] Speaker 04:
What the agency did was they identified some hours that they felt should be excluded, but they didn't say that that was a comprehensive list of all hours.

[00:16:11] Speaker 04:
They were just demonstrating that it was possible to identify some that specifically should be disregarded.

[00:16:17] Speaker 04:
But as the board, as the administrative judge found,

[00:16:19] Speaker 04:
Many of the hours just couldn't be identified at all.

[00:16:21] Speaker 04:
There were initials that Ms.

[00:16:24] Speaker 04:
Slavitt hadn't bothered to identify who the initials belonged to in the invoices.

[00:16:29] Speaker 04:
There were tasks that were not explained.

[00:16:33] Speaker 04:
The topics were not explained.

[00:16:34] Speaker 01:
So the fact that the agency... So the only person who could really tell us enough or tell the board enough about the time charges to determine whether they were reasonable was Ms.

[00:16:44] Speaker 01:
Slavitt, right?

[00:16:45] Speaker 04:
Well, Ms.

[00:16:46] Speaker 04:
Slavitt or Ms.

[00:16:47] Speaker 04:
Rumsey, after pressing Ms.

[00:16:49] Speaker 04:
Slavitt for that information, just like any client would when they are presented with invoices from an attorney that they don't understand.

[00:16:57] Speaker 01:
So what happened here?

[00:16:58] Speaker 01:
If I understand correctly, Ms.

[00:17:00] Speaker 01:
Slavitt sought to intervene in the proceeding to provide that kind of information, and the board said, no, you can't do that.

[00:17:07] Speaker 04:
Well, she sought to intervene, meaning intervenes become a party in the case.

[00:17:10] Speaker 04:
She was not a party in the case because the applicant

[00:17:13] Speaker 04:
And the party, the prevailing party in this case was Ms.

[00:17:15] Speaker 04:
Rumsey.

[00:17:16] Speaker 04:
So it was right for the board not to allow Ms.

[00:17:18] Speaker 04:
Slavitt to intervene.

[00:17:19] Speaker 04:
But it was Ms.

[00:17:19] Speaker 04:
Rumsey's burden to go back to Ms.

[00:17:21] Speaker 04:
Slavitt.

[00:17:22] Speaker 01:
But didn't she seek to intervene to provide that information?

[00:17:26] Speaker 04:
She filed a motion to intervene.

[00:17:27] Speaker 04:
I don't believe it was to be as a witness, because she submitted a declaration through Ms.

[00:17:32] Speaker 04:
Rumsey.

[00:17:33] Speaker 04:
And so she could have provided that additional information, again, through Ms.

[00:17:36] Speaker 04:
Rumsey.

[00:17:36] Speaker 04:
She could have said, OK, these are the deficiencies that the agency has identified.

[00:17:40] Speaker 04:
I'm going to submit a second declaration through Ms.

[00:17:43] Speaker 04:
Rumsey, identifying who these initials are, explaining what these topics are.

[00:17:48] Speaker 04:
But Ms.

[00:17:49] Speaker 04:
Rumsey didn't make an effort to obtain that from Ms.

[00:17:52] Speaker 04:
Slavett, because she had her ongoing fee dispute in Ms.

[00:17:55] Speaker 04:
Slavett, and in fact didn't want to pay her anything.

[00:17:57] Speaker 04:
So she was really trying to have it both ways, not furnish supplementary information about Ms.

[00:18:04] Speaker 01:
Slavett's fees.

[00:18:04] Speaker 01:
Well, I'm not sure that's fair.

[00:18:07] Speaker 01:
she risked a situation in which because of the limited amount of success that she wasn't going to recover the amount of the fees, she had a legitimate fee dispute with Ms.

[00:18:18] Speaker 01:
Slavitt and she was not obviously going to admit that the entire claim for attorney's fees was warranted.

[00:18:27] Speaker 01:
It's really a question, isn't it, of what she should have done after the settlement of the fee dispute?

[00:18:34] Speaker 04:
I think by the time it had been settled, my recollection is that the record before the board would have been closed because it was the initial decision had already been issued.

[00:18:45] Speaker 04:
So I don't know she would have had to and could certainly have argued to the full board that there was new evidence that was not available at the time that she was before the administrative judge and attempted to submit the evidence at that point.

[00:18:58] Speaker 04:
And she did not attempt to do that.

[00:19:01] Speaker 04:
But what this case comes down to is that

[00:19:04] Speaker 01:
So maybe the board should have invited her to come up with a supplemental affidavit from Ms.

[00:19:10] Speaker 01:
Slavitt detailing the reasonable fees.

[00:19:13] Speaker 04:
Well, I don't know that it was the board's responsibility to invite her.

[00:19:17] Speaker 04:
Ms.

[00:19:17] Speaker 04:
Rumsey had already had several bites at the apple.

[00:19:19] Speaker 04:
The agency had objected to her initial fee application.

[00:19:22] Speaker 04:
She had filed a supplemental application.

[00:19:24] Speaker 04:
She had filed a reply to the agency's opposition to her motion for fees.

[00:19:29] Speaker 04:
And she also filed a petition for review of the initial decision

[00:19:33] Speaker 04:
on the fee.

[00:19:34] Speaker 04:
So she had many, many opportunities, and even frankly before this court, many opportunities to really specifically identify something in Ms.

[00:19:43] Speaker 04:
Slavitt's invoices that she did stand by and say were reasonable.

[00:19:47] Speaker 04:
And to this day, she has not done that.

[00:19:50] Speaker 04:
The Supreme Court has said that the applicant does bear a burden.

[00:19:53] Speaker 04:
And the bottom line here is that Ms.

[00:19:56] Speaker 04:
Rumsey

[00:19:56] Speaker 04:
did not meet that burden.

[00:19:57] Speaker 04:
She really did not even attempt to meet that burden.

[00:20:00] Speaker 03:
What is your response to the Slimfold case?

[00:20:03] Speaker 04:
Thank you, Your Honor.

[00:20:04] Speaker 04:
I was just about to turn to that, because I know the court doesn't want to hear about that.

[00:20:08] Speaker 04:
The Slimfold case is a very interesting case to me.

[00:20:10] Speaker 04:
And I would say, first of all, my reading of it indicates that there's nothing in that case at all that compels an award of attorney fees in this case.

[00:20:20] Speaker 04:
And I say that for a couple of reasons.

[00:20:22] Speaker 04:
First of all, in the Slimfold case,

[00:20:24] Speaker 04:
This court, even though we know that the district court that was on appeal in Slimfold had awarded no fees, but despite that, this court did not hold that that district court had abused its discretion by awarding no fees.

[00:20:37] Speaker 04:
They did not hold that the record before the district court presented sufficient records on which to base an award.

[00:20:44] Speaker 04:
They simply and literally the quote is that they urged the court to reconsider its position on the adequacy of the attorney fee documentation.

[00:20:54] Speaker 04:
So it was not even a direct order.

[00:20:56] Speaker 04:
The remand did direct the court expressly to redetermine whether the facts of the case merited a finding of willfulness.

[00:21:03] Speaker 04:
But when it came to the attorney fees decision, all this court said was that it urged the court to reconsider its position.

[00:21:10] Speaker 03:
What about the statement saying, in fact, the Norman case recognizes that a district court itself has experience in determining what are reasonable hours and reasonable fees.

[00:21:21] Speaker 03:
and should rely on that experience and knowledge if the documentation is considered inadequate.

[00:21:26] Speaker 04:
That's the most interesting thing of all to me about this case.

[00:21:30] Speaker 04:
Because although this court cites to Norman for purportedly the obligation of a district court to award some fees, that's what that sentence seems to imply.

[00:21:42] Speaker 04:
In fact, the district court judge whose decision was being reviewed in Slimfold

[00:21:49] Speaker 04:
wrote the decision in Norman.

[00:21:51] Speaker 04:
That's fascinating to me, because the district court judge says in his underlying opinion that led to the Slimfold Appeal, he says, this court had the privilege of sitting with the 11th Circuit Court of Appeals and the opportunity to write for that court the decision of Norman.

[00:22:08] Speaker 04:
And if we look at Norman, in fact, the district court judge, whose opinion is being reviewed in Slimfold, judged far starkly the same as, he is the author of the opinion in Norman.

[00:22:18] Speaker 04:
So clearly, the author of the Norman opinion did not believe that Norman stood for the proposition that a total denial of fees was not appropriate.

[00:22:29] Speaker 01:
In the Slimfold case, you were dealing with $285, right?

[00:22:35] Speaker 01:
which talks about fees may be awarded.

[00:22:39] Speaker 01:
Whereas here, we're talking about a statute that says, shall be awarded.

[00:22:44] Speaker 01:
Why under those circumstances, isn't there an obligation on the part of the board to make a determination of reasonableness drawing on its experience?

[00:22:55] Speaker 01:
Maybe in a case where it may award fees that you can say, well, we're not going to award any fees because

[00:23:02] Speaker 01:
the record-keeping is so bad.

[00:23:04] Speaker 01:
But when it says shall, doesn't that mean shall?

[00:23:07] Speaker 04:
Well, I would say two things about that, Your Honor.

[00:23:09] Speaker 04:
First, I would say that in both cases, whether it shall or may, it does refer to reasonable fees.

[00:23:14] Speaker 04:
And the burden, despite the fact that it shall, the burden does not change from the applicant to at least come forward and demonstrate initially the reasonable number of hours.

[00:23:23] Speaker 04:
And the second thing I would say is that it should not be forgotten that in this case, Ms.

[00:23:27] Speaker 04:
Romney did obtain fees.

[00:23:30] Speaker 04:
She did obtain attorney fees.

[00:23:31] Speaker 04:
She submitted

[00:23:32] Speaker 04:
invoices from three attorneys to cover her entire litigation.

[00:23:37] Speaker 01:
Suppose her only lawyer had been Ms.

[00:23:40] Speaker 01:
Slavitt and fees had been denied in their entirety.

[00:23:45] Speaker 01:
What should the board do under those circumstances?

[00:23:48] Speaker 04:
I would say even in this hypothetical where the applicant herself, the only evidence she puts forward for fees are invoices that she expressly disavows and doesn't support

[00:23:59] Speaker 04:
I would still say that the applicant has not met her burden of demonstrating reasonableness.

[00:24:03] Speaker 01:
In this case, however, I do think that... And it's okay for the board to say no fees at all?

[00:24:10] Speaker 04:
It is okay for the board to say that when the applicant doesn't meet her burden, because the Supreme Court has said the applicant bears the burden.

[00:24:17] Speaker 04:
I think in this case, for this court to find that the board has to award fees, it would basically either have to find that

[00:24:26] Speaker 04:
that despite, even when an applicant doesn't meet her burden of coming forward with any reasonableness, that they still have to get fees.

[00:24:32] Speaker 02:
And that seems to me have very good support.

[00:24:33] Speaker 02:
So you say it doesn't matter whether or not the statute itself says reasonable attorney's fees shall be awarded to whistleblowers.

[00:24:43] Speaker 02:
You're saying that makes no difference.

[00:24:45] Speaker 04:
I'm saying it makes no difference because of the fact that the fees have to be reasonable and that the applicant still bears the burden of demonstrating the reasonableness.

[00:24:53] Speaker 04:
So the shall, it's a, I agree that in this case,

[00:24:56] Speaker 04:
Where an applicant demonstrates reasonable fees, there's no discretion not to award them because of the shall.

[00:25:03] Speaker 04:
But it doesn't take away the requirement that the applicant in the first place meet their burden of demonstrating reasonableness.

[00:25:09] Speaker 03:
What if some of the time records, like for example, a time record saying drafting a motion in response and drafting motion for reconsideration, for example, that's not reasonable?

[00:25:20] Speaker 03:
Why is that not reasonable when some of the time records, maybe there's some repetitive time records,

[00:25:26] Speaker 03:
Why, I mean, it's hard to imagine that in the two years that Ms.

[00:25:34] Speaker 03:
Slavitt was representing, that there was not a single reasonable hour expended.

[00:25:41] Speaker 04:
I wouldn't say that it's not possible.

[00:25:44] Speaker 04:
I mean, likely there were some reasonable hours expended.

[00:25:47] Speaker 04:
I really don't know because, in fact, this record is replete with criticism by the administrative judge of

[00:25:53] Speaker 04:
Ms.

[00:25:53] Speaker 04:
Slavitt's conduct throughout the pre-hearing and hearing of this case.

[00:25:56] Speaker 04:
So I don't know whether there were any reasonable hours.

[00:26:00] Speaker 04:
It seems, according to the record, that many of the hours that Ms.

[00:26:03] Speaker 04:
Slavitt spent were not only not productive, they were, in fact, counterproductive.

[00:26:08] Speaker 04:
And Ms.

[00:26:08] Speaker 04:
Rumsey stated that the reason she had to bring in counsel to the hearing was because Ms.

[00:26:15] Speaker 04:
Slavitt had created such a chaotic record.

[00:26:18] Speaker 01:
So in these circumstances, I am not going to concede that any of them are reasonable.

[00:26:21] Speaker 01:
Wait, you can't talk over me.

[00:26:21] Speaker 01:
You're not allowed to talk over me.

[00:26:23] Speaker 04:
I'm sorry, Your Honor.

[00:26:26] Speaker 01:
Are you saying that on this record that it's reasonable to suppose that Ms.

[00:26:31] Speaker 01:
Slavitt didn't spend any reasonable hours?

[00:26:34] Speaker 01:
That seems an extreme position.

[00:26:37] Speaker 04:
Well, I would say it is reasonable on this record, but I don't think the court needs to reach that.

[00:26:42] Speaker 04:
That's not really the basis that the board made its opinion.

[00:26:45] Speaker 04:
It didn't say Ms.

[00:26:46] Speaker 04:
Slavitt was such a terrible attorney, then therefore it's not reasonable.

[00:26:49] Speaker 04:
What the board said instead was, we don't have

[00:26:53] Speaker 04:
a factual basis to determine the reasonableness of the hours.

[00:26:58] Speaker 04:
And that is in part because of the chaos of the invoices themselves that the board was not able to make sense out of.

[00:27:06] Speaker 04:
They couldn't identify who was putting the time in or who Ms.

[00:27:11] Speaker 04:
Slavitt was talking to.

[00:27:12] Speaker 04:
Sometimes she was talking to the press.

[00:27:14] Speaker 04:
Sometimes she was talking to TC or RX or other initials.

[00:27:18] Speaker 04:
And also because Ms.

[00:27:21] Speaker 04:
Rumsey herself

[00:27:22] Speaker 04:
And again, I think this is a very unique case.

[00:27:25] Speaker 03:
I can't think of any other.

[00:27:26] Speaker 03:
I'm sorry.

[00:27:26] Speaker 03:
I have an important question for you.

[00:27:27] Speaker 03:
Yes.

[00:27:28] Speaker 03:
Can the board look at time records, pick out 15 examples of things like what you're talking about, talking to reporters, and then say, well, the rest of them are unreasonable.

[00:27:39] Speaker 04:
Could the board do that?

[00:27:40] Speaker 03:
Yes.

[00:27:41] Speaker 03:
Yes.

[00:27:41] Speaker 03:
Because you're pointing out examples, but I can point out counter examples where it sounds reasonable on its face.

[00:27:48] Speaker 03:
And these time records were submitted to the board.

[00:27:52] Speaker 03:
And so is it proper for a board that is shallower at attorney fees when it receives records to look and identify 15 to 20 occurrences even of duplicative work or work where it's talking to reporters or making copies and then say, well, they're all unreasonable?

[00:28:11] Speaker 04:
It is not the board's burden to establish in the first place the reasonableness of the fees.

[00:28:16] Speaker 04:
So to answer your question,

[00:28:18] Speaker 04:
Could the board pick out a couple of hours where it could?

[00:28:20] Speaker 03:
Right, but you're assuming that a burden is not met just by submitting the records, that there's no burden, none of the burden of showing reasonable hours is met by providing time records.

[00:28:33] Speaker 04:
It's not met by providing time records that the applicant expressly disavows.

[00:28:38] Speaker 01:
So if these time records had been submitted without the disavowal, the board would have to award fees?

[00:28:46] Speaker 04:
If Ms.

[00:28:47] Speaker 04:
Rumsey had submitted the invoices and stood behind them in the sense that, yes, as your question presupposes, not disavow them, then to the extent that the board could make sense of them or could otherwise come up with a fee, yes, because Ms.

[00:29:02] Speaker 04:
Rumsey at least would have met her initial burden of demonstrating the reasonableness.

[00:29:07] Speaker 04:
And that is her burden, according to the Supreme Court, by coming forward

[00:29:11] Speaker 04:
submitting fees, but at the same time saying, I don't stand by them, I disagree with them.

[00:29:16] Speaker 04:
She did not even meet that initial burden.

[00:29:19] Speaker 04:
And I would submit that she cannot shift that burden to either the agency or to the board.

[00:29:23] Speaker 02:
I just want to be sure that I have the position straight.

[00:29:26] Speaker 02:
So we have this lengthy, detailed affidavit from the attorney saying, these are all the things that I did and it touches all the bills and so on.

[00:29:35] Speaker 02:
And so there it is on its face.

[00:29:37] Speaker 02:
It looks fine.

[00:29:38] Speaker 02:
So Ms.

[00:29:39] Speaker 02:
Romsey writes a letter and says, I'm the client.

[00:29:41] Speaker 02:
I don't know if these things were reasonable or not.

[00:29:44] Speaker 02:
And that wipes everything out.

[00:29:47] Speaker 04:
Again, I would have to disagree with that characterization, because it's not that Ms.

[00:29:50] Speaker 04:
Romsey said, I don't know.

[00:29:51] Speaker 04:
She said, I specifically disagree.

[00:29:52] Speaker 02:
That's what she said.

[00:29:53] Speaker 02:
She said, I can't vouch for it.

[00:29:55] Speaker 02:
This attorney did attorney work.

[00:29:58] Speaker 04:
Well, she did a little bit more than that, Your Honor, as I said.

[00:30:00] Speaker 01:
Where is this in the record?

[00:30:02] Speaker 04:
This is on Appendix page 172, 173.

[00:30:06] Speaker 04:
And again, it's not simply that Ms.

[00:30:07] Speaker 04:
Rumsey said, here are some attorney records.

[00:30:09] Speaker 04:
I'm not an attorney.

[00:30:10] Speaker 04:
I can't make sense of them, so I can't vouch for them.

[00:30:13] Speaker 04:
It's that she specifically said that her positions diverged from those expressed by Ms.

[00:30:18] Speaker 04:
Slavitt, including the hours and time charges and receipts.

[00:30:24] Speaker 04:
She said in many respects.

[00:30:24] Speaker 04:
She didn't say in every respect.

[00:30:26] Speaker 04:
She didn't, but she didn't identify where she did.

[00:30:28] Speaker 04:
I will remind the court that the Supreme Court says hours that are not properly billed to one's client

[00:30:33] Speaker 04:
also are not properly billed to one's adversary pursuant to statutory authority?

[00:30:38] Speaker 02:
Well, we know they were billed with a great debate as to whether they were, as to the rate, but there's this great detail submitted by the attorney as to every item and every bill.

[00:30:53] Speaker 02:
And so, I just wanted to show, so the government's position is that the client then, in an attorney's fees case where

[00:31:01] Speaker 02:
the statute says Attorneys 3 shall be awarded, must go through every single item and say, yes, I personally knew it took that many hours or I personally received the result or whatever.

[00:31:17] Speaker 02:
Is that what's required, a corresponding affidavit from the client going through every single item provided by the attorney?

[00:31:29] Speaker 04:
It's not required in the typical case, Your Honor.

[00:31:31] Speaker 04:
This case is unique because Ms.

[00:31:33] Speaker 04:
Rumsey disavowed, disagreed, and did not explain which one she agreed with.

[00:31:38] Speaker 04:
In this case, she created a different scenario than is presented in the typical case.

[00:31:44] Speaker 04:
So no, in the typical case, I would not say that is the government's position that the client has to go through it.

[00:31:50] Speaker 04:
But where the client specifically says, I disavow these, I disagree with these, I don't stand by these,

[00:31:56] Speaker 04:
that creates a different situation.

[00:31:57] Speaker 01:
But when she paid the $200,000 in settlement of the fee dispute, surely she had reached the conclusion that at least $200,000 worth of this was reasonable, right?

[00:32:11] Speaker 04:
I would disagree with that, Your Honor.

[00:32:13] Speaker 04:
We don't know why she arrived at that figure.

[00:32:16] Speaker 04:
We only know that she did.

[00:32:17] Speaker 04:
People settle cases for all kinds of reasons.

[00:32:19] Speaker 04:
They settle cases because they think that their attorney fees just in litigating that case are not worth

[00:32:24] Speaker 04:
pursuing the case any longer and that they're just going to quit while they're ahead.

[00:32:28] Speaker 04:
We don't know and she didn't explain how the amount of the settlement was arrived at or how it tied in to the invoices that her attorney had submitted.

[00:32:37] Speaker 04:
All she said was, this is the amount that I settled for.

[00:32:40] Speaker 01:
I suppose she'd said, I settled for $200,000 because I think that's the reasonable amount of fees.

[00:32:48] Speaker 04:
Might have been a different situation.

[00:32:50] Speaker 04:
I guess I would have to know the details of exactly how she said it and whether she identified some of the fees.

[00:32:56] Speaker 04:
I'm finding that a little vague to really give a definitive answer, but she didn't do that in this case.

[00:33:06] Speaker 02:
All right.

[00:33:08] Speaker 02:
Thank you, Mr. Chairman.

[00:33:09] Speaker 02:
All right.

[00:33:10] Speaker 02:
Thank you, Your Honor.

[00:33:24] Speaker 02:
Mr. Berger.

[00:33:26] Speaker 00:
With respect to Ms.

[00:33:27] Speaker 00:
Slavitt's attempt to intervene in the case after she was replaced as counsel, her motion is contained in the appendix of page 143.

[00:33:37] Speaker 00:
And in it, she calls it an intervention for limited purpose of attorney's fee filing.

[00:33:42] Speaker 00:
And she says in the body of the document, she seeks to intervene in this case for the sole purpose of receiving notice of pleadings and maintaining right and ability to apply for attorney's fees.

[00:33:54] Speaker 00:
or she wanted to be able to participate in that attorney's fee process.

[00:33:59] Speaker 00:
And that was what was denied, again, page 89 of the appendix by the board.

[00:34:05] Speaker 00:
I only have one or two other points to make.

[00:34:08] Speaker 00:
One is, yes, we could have gone, I suppose in theory, could have gone through each line item.

[00:34:14] Speaker 00:
But there are many decisions out there by both appellate courts and trial courts indicating that where there are many issues with respect to time entries,

[00:34:24] Speaker 00:
As a substitute, they can be reduced by a flat percentage.

[00:34:28] Speaker 00:
And that is what we have proposed both before the board and here.

[00:34:33] Speaker 00:
Lastly, I'd like to make the point that the prohibited personnel actions that we were involved with here occurred in 2007 and 2008.

[00:34:43] Speaker 00:
These fees were incurred, and many of which were paid for, in 2008, 2009, through 2011,

[00:34:52] Speaker 00:
And then subsequently, I believe in 2014.

[00:34:56] Speaker 00:
We're now 2017.

[00:34:57] Speaker 00:
I think we'd like to get this over with.

[00:35:01] Speaker 00:
We'd like there not to be a remand if we can help it.

[00:35:05] Speaker 00:
And in that regard, I'd like to point out that the Merit Systems Protection Board currently has two vacancies.

[00:35:11] Speaker 00:
Because of that, there is no quorum and no decisions can be made by the board level except for very limited nature.

[00:35:19] Speaker 00:
It's my understanding that the president has not nominated

[00:35:22] Speaker 00:
anyone for either of the two vacancies.

[00:35:25] Speaker 00:
And while there's legislation pending in Congress to address the lack of a quorum at the board, I have no idea whether that legislation is going to pass.

[00:35:33] Speaker 00:
In other words, should this case be remanded, it will be a substantial additional delay for Ms.

[00:35:39] Speaker 00:
Ramsey.

[00:35:45] Speaker 02:
Thank you very much.

[00:35:45] Speaker 02:
Thank you.

[00:35:46] Speaker 02:
Thank you both.

[00:35:46] Speaker 02:
The case is taken under submission.

[00:35:49] Speaker 02:
That concludes our arguments for this morning.

[00:35:54] Speaker ?:
All right.