Glibowski v. United States Office of Personnel Management

Filing 78

ORDER by District Judge M. Christina Armijo granting in part and denying in part 73 Motion for Attorney Fees (lvm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROBERT and DEBRA
GLIBOWSKI,
Plaintiffs,
v.

No. 09-CV-1039 MCA/KBM

UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT,
Defendant.
SEALED MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiffs’ Application for Award of
Reasonable Attorney’s Fees Pursuant to 28 USC 2412(d) [Doc. 73]. The Court, having
considered the submissions, the relevant law, and being otherwise fully informed in the
premises, hereby GRANTS IN PART and DENIES IN PART the Motion.
BACKGROUND
Plaintiffs were denied benefits by their federal employee health benefit plan, and
they appealed the denial to the Office of Personnel Management (OPM). [Doc. 23, p. 2]
OPM upheld the vast majority of the denials of benefits on the ground that the treatments
were not medically necessary. [Doc. 23, p. 16] On December 9, 2013, this Court entered
a Memorandum Opinion and Order upholding some of OPM’s determinations but
concluding that, for the vast majority of the denials, OPM failed to submit sufficient
evidence to support its decision or failed to explain the basis for its decision, and thus
OPM’s decision was arbitrary and capricious. [Doc. 23, p. 101] The Court remanded the
1

appeal to OPM and ordered OPM to allow additional evidence as necessary as well as to
clarify the basis for its decision. [Doc. 23, p. 101] The Court also ordered OPM to fully
develop the record and allow Plaintiffs to submit a rebuttal on the question of the medical
necessity of the treatments. [Doc. 23, p. 101] By separate Order, the Court subsequently
granted, in part, Plaintiffs’ request for fees pursuant to the Equal Access to Justice Act
(EAJA) associated with the appeal. [Doc. 44, pp. 15-16]
On January 20, 2015, Plaintiffs filed a Motion to Reopen this case. [Doc. 39]
Plaintiffs submitted that their counsel had discussions with counsel for OPM in the spring
of 2014 in an effort to reach a settlement, but no settlement was reached. [Doc. 39, ¶ 3]
Plaintiffs further stated that they were discussing pending motions for EAJA costs and
fees in 2014, and during that time the “the attorney for the Government has declined to
approach OPM regarding its duties.”

[Doc. 39, ¶ 4]

OPM responded that it was

conducted proceedings on remand according to the Court’s Order and, as no deadline was
imposed, that it was in compliance with the Court’s Order. [Doc. 41, pp. 2-3] On
September 24, 2015, the Court denied the Motion to Reopen, reasoning that OPM was, at
the time of their response, complying with the Court’s Order and the Court Order did not
contain a deadline. [Doc. 43, pp. 6-7, 12]
Approximately two weeks after the Court denied the Motion to Reopen, Plaintiffs
filed a Motion to Enforce the Court’s December 9, 2013 Order, asserting that OPM still
had not complied with the Court’s Order. [Doc. 45, pp. 2-3] Thereafter, OPM issued its
decision on October 23, 2015, and thus OPM responded to Plaintiffs’ Motion to Enforce
by submitting that it had now complied with the Court’s Order and thus the Motion was
2

moot. [Doc. 46; Doc. 46-1] Plaintiffs replied by arguing that, in reaching its decision,
OPM continued to fail to comply with the Court’s December 9, 2013 Order. [Doc. 49,
p. 1] After additional briefing, the Court considered this argument, and agreed in part,
entering a Memorandum Opinion and Order remanding the matter to OPM to require the
plan to pay benefits for particular treatments. [Doc. 65, p. 32] However, the Court also
concluded that, applying the arbitrary and capricious standard of review, OPM
sufficiently articulated a rational and reasonable basis for denying benefits for the longterm administration of antibiotics to treat Lyme disease. [Doc. 65, pp. 15-16] Plaintiffs
disagreed with this determination and filed a Motion for Reconsideration. [Doc. 66] As
discussed further below, the Court denied the Motion for Reconsideration. [Doc. 71]
Thereafter, Plaintiffs filed the present Application for Award of Reasonable
Attorney’s Fees Pursuant to 28 USC 2412(d). [Doc. 73] Plaintiffs’ counsel submitted an
“Itemized Statement of Hours” within the Application, and asserted that OPM’s position
was not substantially justified.

[Doc. 73, pp. 3-11]

Plaintiffs did not submit

contemporaneous billing records. [Doc. 73] Plaintiffs requested compensation for 142.5
hours billed by their attorney at $125.00 an hour for services rendered from March 2,
2014 through October 4, 2017. [Doc. 73, pp. 4-11]
In response, OPM does not contest that its position was not substantially justified,
and thus concedes that Plaintiffs are eligible to receive fees. [Doc. 76, p. 1] OPM
requests that the Court consider whether Plaintiffs’ application for attorney’s fees is
reasonable and whether any reduction should be applied. [Doc. 76, p. 2] OPM argues
that the fee request is unreasonable in several respects. First, OPM states that the request
3

is not supported by contemporaneous records. [Doc. 76, p. 3] Second, OPM submits that
“the application only contains vague, frequently one or two word, descriptors of the work
done by Plaintiffs’ counsel that are inadequate to allow the Court or the United States to
evaluate the propriety of the application.” [Doc. 76, p. 2] Third, OPM observes that
several of the tasks listed “appear to be wholly unrelated to the resolution of this matter,
such as meeting with a congressman from New Jersey and emailing non-party Lyme
disease interest groups to provide case status reports.” [Doc. 76, p. 2] Fourth, OPM
argues that several tasks were unnecessary and failed to advance the litigation. [Doc. 76,
pp. 8-9] Fifth, OPM asserts that several tasks are “block-billed,” despite this Court’s
prior Order explaining the potential for vagueness with such billing and potential
necessity of reducing the fee award. [Doc. 76, p. 9; Doc. 33, p. 27] Finally, OPM argues
that Plaintiffs should not receive attorney’s fees with respect to their unsuccessful motion
to reconsider. [Doc. 76, p. 10]
ANALYSIS
Pertinent Standards Governing EAJA Fee Requests
“A party seeking an award of fees and other expenses” must:
submit to the court an application for fees and other expenses which shows
that the party is a prevailing party and is eligible to receive an award under
this subsection, and the amount sought, including an itemized statement
from any attorney or expert witness representing or appearing in behalf of
the party stating the actual time expended and the rate at which fees and
other expenses were computed. The party shall also allege that the position
of the United States was not substantially justified.
28 U.S.C. § 2412(d)(1)(B).

4

Except as otherwise specifically provided by statute, a court shall award to
a prevailing party other than the United States fees and other expenses . . .
incurred by that party in any civil action[,] . . . including proceedings for
judicial review of agency action, brought by or against the United States in
any court having jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
Once a district court concludes that the United States’ position was not
substantially justified and therefore the fee applicant is eligible to receive an EAJA fee
award – which has already been done in this case – the court must apply the lodestar
method to determine whether the fees sought are reasonable. See Comm’r, Ins. v. Jean,
496 U.S. 154, 161 (1990) (explaining that “the district court’s task of determining what
fee is reasonable [for an EAJA award] is essentially the same as [the lodestar method]
described in Hensley” v. Eckerhart, 461 U.S. 424, 433 (1983)); Centennial Archaeology,
Inc. v. AECOM, Inc., 688 F.3d 673, 679-80 (10th Cir. 2012) (recognizing that the United
States Courts of Appeal have applied the lodestar method to determine the reasonableness
of attorney’s fees under various statutes and citing cases applying it to EAJA fee awards).
The lodestar figure “is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433. The EAJA allows a
statutory fee of $125.00, which is a reasonable hourly fee. 28 U.S.C. § 2412(d)(2)(A).
A fee applicant bears the burden of establishing entitlement to an award and
documenting the number of hours reasonably expended as well as the hourly rates. See
U.S. v. 5,063.17 Acres of Land, More or Less, Situated in Las Animas Cnty., Colo., 607

5

F. Supp. 311, 317 n.3 (D. Colo. 1985), rev’d on other grounds, 836 F.2d 480 (10th Cir.
1987).
Plaintiffs’ burden in an application for attorney[’s] fees is to “prove and
establish the reasonableness of each dollar, each hour, above zero.” [Mares
v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1986).] To meet
that burden, we require that lawyers keep meticulous time records that
“reveal ... all hours for which compensation is requested and how those
hours were allotted to specific tasks.” Ramos v. Lamm, 713 F.2d 546, 553
(10th Cir. 1983) [overruled on other grounds by Pennsylvania v. Delaware
Valley Citizens’ Council for Clean Air, 483 U.S. 711, 717 n.4 (1987)]. The
prevailing party must make a “good-faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary.”
Hensley, 461 U.S. at 434, 103 S.Ct. at 1939–40.
Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995). Accordingly, applicants must
“submit evidence supporting the hours worked.” Hensley, 461 U.S. at 433. Adequate
evidence “must reveal[] . . . all hours for which compensation is requested and how those
hours were allotted to specific tasks—for example, how many hours were spent
researching, how many interviewing the client, how many drafting the complaint, and so
on.” Ramos, 713 F.2d at 553. Furthermore, billing records must contain a sufficiently
detailed and meaningful description of the attorney’s services to allow a district court to
determine whether the hours spent were reasonable. See, e.g., 5,063.17 Acres of Land,
607 F. Supp. at 316, 317. Generally, “[a] single word entry such as ‘conference’ is
inadequate,” because the court “must be able to determine whether the hours spent are
reasonable and not duplicitous.” Id. at 317.
“Block billing,” which occurs when an attorney “lump[s] multiple tasks into a
single entry of time,” Cadena v. Pacesetter Corp., 224 F.3d 1203, 1214 (10th Cir. 2000),
presents a problem when some entries listed are compensable while others are not. San
6

Luis Valley Ecosystem v. U.S. Forest Serv., No. 04-CV-1071-MSK, 2009 WL 792257, *7
(D. Colo. Mar. 23, 2009). “Where block billing prevents the Court from identifying the
reasonable time spent on a compensable task, the Court may elect to instead engage in a
general, proportionate reduction of total hours claimed to ensure that noncompensable
time is excluded.” Id. (citation omitted).
Contemporaneous Records
OPM objects that Plaintiffs did not submit contemporaneous billing records with
their Motion. [Doc. 76, p. 3] This is the second time that Plaintiffs’ counsel has failed to
submit contemporaneous billing records. With regard to Plaintiffs’ first motion for EAJA
fees, filed in February of 2014, this Court ordered Plaintiffs to submit supplemental
briefing, including contemporaneous time records, to support their previous motion for
EAJA fees, so that the Court could determine whether the fees requested were
reasonable.

[Doc. 33, pp. 27-28]

Although the Court explained the necessity of

contemporaneous billing records previously, Plaintiffs’ counsel repeated the mistake with
the present Motion for EAJA Fees. Because Plaintiffs’ counsel was already instructed
regarding the requirement to submit contemporaneous records [Doc. 33, pp. 27-28], the
Court will not allow Plaintiffs another chance to submit the contemporaneous records.
Instead, the Court will consider the lack of contemporaneous records when considering
whether the fees billed were reasonable, and, if the documentation is insufficient to
warrant fees, the Court will disallow such fees. See Robinson v. City of Edmond, 160
F.3d 1275, 1281 (10th Cir. 1998) (“[A] district court may discount requested attorney
hours if the attorney fails to keep meticulous, contemporaneous time records that reveal
7

all hours for which compensation is requested and how those hours were allotted to
specific tasks.” (Internal quotation marks and citation omitted)).
Reasonableness of Fees
OPM challenges the reasonableness of the fees or the hours expended on several
grounds. OPM argues that Plaintiffs’ descriptions of the work done “are not adequate to
allow the United States to respond to, or the Court to evaluate, the fee application,” citing
5,063.17 Acres of Land, 607 F. Supp. at 316, 317.1 [Doc. 76, p. 4] Further, with regard
to certain activities where the nature of the activity can be determined, OPM argues that
the activities were not related to the case2 or the activities were unnecessary and did not
advance the litigation, and thus no fee should be awarded.3 [Doc. 76, pp. 6-8] In a
related argument, OPM submits that the time record submitted also includes a handful of
block-billed activity, for which activities related to the case and activity unrelated to the
case are not separately billed, and thus OPM asks the Court to make a proportional
reduction of the total hours claimed to ensure that non-compensable time is excluded.
[Doc. 76, p. 9]
The Court agrees with the rationale behind each of OPM’s arguments. The Court
is able to clearly discern that some of the activities included on Plaintiffs’ itemized
statements were not related to or did not advance this litigation. Such activities include
correspondence with Lyme disease advocacy groups, meeting with congressional
representatives, and generic Lyme disease research to the extent that Plaintiffs failed to
1

In the attached fee chart, the Court shortens this objection to the word “vague.”
In the attached fee chart, the Court shortens this objection to the word “unrelated.”
3
In the attached fee chart, the Court shortens this objection to the word “unnecessary.”
2

8

demonstrate that such research was related to this case and not related to other advocacy
efforts. If Plaintiffs are arguing that their attempts to enact laws supporting their views of
Lyme disease are related to this case, Plaintiffs’ view is far too broad. [Doc. 77, p. 3]
The Court will not award attorneys’ fees with regard to activity which did not advance
this particular case.
In addition, there are many entries for which the Court is unable to discern
whether the activity was or was not related to this case. Plaintiffs have the burden of
submitting documentation which is sufficiently detailed for the Court to determine that
the work was necessary, which Plaintiffs here failed to do. See, e.g., 5,063.17 Acres of
Land, 607 F. Supp. at 316, 317 (stating that the party requesting fees must submit
sufficiently detailed descriptions of the work done). For example, the itemized statement
includes the following entry for March 17, 2014: “Various email/lyme organizations,
research settlement, set up meeting w Gregg Skall, Susan Green in DC.” In part because
Plaintiffs do not explain who the referenced people are, the Court cannot discern whether
the work done relates to the present case. Likewise, on May 19, 2014 is the following
entry: “Lyme research.” Without additional context and description, the Court does not
know whether this research was related to the case at hand or to advocacy work or simply
general research. Accordingly, for these activities, the Court must disallow the request
for attorney’s fees.
Similarly, Plaintiffs’ “Itemized Statement” includes block-billed entries.
However, the Court does not conclude that a proportionate reduction of all of the time
requested by Plaintiffs is appropriate because the Court can reasonably determine the
9

amount of time spent on activities unrelated to or unnecessary to the litigation. Robinson,
160 F.3d at 1285 (concluding that it is not impossible to identify excessively billed hours
where the Court has “information sufficient to calculate how much time was spent on
those tasks”). The Court’s fee chart, attached, reflects the amount of time allowed and
disallowed and states the reason for the disallowance of fees.
In addition, while OPM did not object on this ground, the Court notes that
Plaintiffs’ counsel’s itemized statement indicates he began looking for an expert after
Plaintiffs’ response to OPM was due. Such work was not necessary to this case, as the
only proper avenue for Plaintiffs to submit an expert opinion in this case was in their
response to OPM (and Plaintiffs never submitted any expert report or testimony to this
Court). Accordingly, such work was unnecessary or was unrelated to the case at hand.
Finally, there are entries to which OPM objected but the Court does not agree with
OPM, particularly entries in May and June of 2015, for example for “research,” or
studying emails, or studying various articles.

While OPM objects that Plaintiffs’

counsel’s descriptions are vague or that the work was unrelated to the case, the Court is
able to discern that these actions were taken in reference to preparing Plaintiffs’ response
to OPM’s request for additional evidence, which was sent by Plaintiffs to OPM on June
22, 2015. Thus, the Court will award Plaintiffs’ attorney’s fees for such work.
Motion for Reconsideration
OPM argues that Plaintiffs should not be awarded fees related to their
unsuccessful Motion for Reconsideration. [Doc. 76 p. 10; Doc. 66] The Court has
discretion in considering an award of attorney’s fees, and may reduce an award of EAJA
10

fees “to the extent that the prevailing party during the course of the proceedings engaged
in conduct which unduly and unreasonably protracted the final resolution of the matter in
controversy.” 28 U.S.C. § 2412(d)(1)(c); accord Jean, 496 U.S. at 161. “Exorbitant,
unfounded, or procedurally defective fee applications—like any other improper position
that may unreasonably protract proceedings—are matters that the district court can
recognize and discount.” Jean, 496 U.S. at 163. However, “absent unreasonably dilatory
conduct by the prevailing party in any portion of the litigation, which would justify
denying fees for that portion, a fee award presumptively encompasses all aspects of the
civil action.” Dye v. Astrue, 244 F. App’x 222, 223 (10th Cir. 2007) (unpublished
opinion) (emphasis omitted) (quoting Jean, 496 U.S. at 161, quotation marks omitted).
Thus, “[w]hile the parties’ postures on individual matters may be more or less justified,
the EAJA—like other fee-shifting statutes—favors treating a case as an inclusive whole,
rather than as atomized line-items.” Id. (internal quotation marks and citations omitted).
As the Court expressly held in its Memorandum Opinion and Order, to the extent
Plaintiffs advanced, for a second time, arguments they previously made, the arguments
made by Plaintiffs in their Motion to Reconsider were inappropriate under Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). [Doc. 71, pp. 3-4] Further,
while the Court construed one argument as appropriate under Servants of the Paraclete
because the argument was made, presumably, to correct a clear error, the Court found
reconsideration inappropriate because 1) Plaintiffs had not timely submitted evidence to
OPM, and 2) regardless of the evidence, OPM had met its duty in explaining the basis for
its decision. [Doc. 71, pp. 6-7] Thus, Plaintiffs did make unfounded arguments within
11

their Motion to Reconsider, and were not successful in any respect with regard to the
Motion to Reconsider.

As such, the Court agrees with OPM that the Motion to

Reconsider unnecessarily protracted the litigation. Accordingly, despite Plaintiffs’ partial
success in the litigation, with respect to the wholly unsuccessful Motion to Reconsider,
the Court has the discretion to discount the fee awarded and the Court finds it appropriate
to exercise such discretion.
Outcome
The Court sets forth, in a chart attached as “Attachment A,” each fee request made
by Plaintiffs, Plaintiffs’ description thereof, OPM’s objection, if any, whether the Court
allows or disallows such fee, and a short-hand description of the basis for each ruling.
The Court has explained the bases for the rulings at length herein. As set forth in
Attachment A, the Court concludes that Plaintiffs are entitled to a fee award for 90.75
hours billed. Plaintiffs’ counsel’s hourly rate of $125.00 is reasonable and allowed by
statute [Doc. 33, p. 25, n.17], and thus Plaintiffs are entitled to an award of $11,343.75.
CONCLUSION
WHEREFORE, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs’ Application for Award of Reasonable Attorney’s Fees Pursuant to 28 U.S.C.
§ 2412(d) [Doc. 73]. OPM is ORDERED to pay Plaintiffs’ attorney’s fees in the amount
of $11,343.75.

12

SO ORDERED this 10th day of May, 2018 in Albuquerque, New Mexico.

___________________________
M. CHRISTINA ARMIJO
United States District Judge

13

Attachment A: Fee Descriptions, Objections and Rulings
Date

Description

Time

Objection

3/2/14

2 e-mail w LDUC

.25

Vague;
unrelated

3/7/14

.25
2.5

Unnecessary;
block bill

Disallow – relationship to
case not shown

3/28/14

AUSA extension
request/order
Various email / lyme
organizations, research
settlement, set up meeting
w Gregg Skall, Susan
Green in DC
“” Meeting

1.5

Unnecessary

4/2/14

e-mail, Mass Lyme ass’n

.25

Unnecessary

4/3/14

.75

4/14/14
4/14/14

Attachments, spreadsheets
from AUSA, study, send
to Pls, AUSA extension
req.
Order, “ “
Get Gregg Skall PDF of
12/9/13 Order
Send to various Lyme
associations
Phone calls with OPM
attorney, negotiation
Email from “ “
Various email, AUSA 3d
extension
Order, “ “
Various Lyme ass’n email

Disallow – relationship to
case not shown
Disallow – relationship to
case not shown
Allow

4/15/14

“ “ “ “, send PDF

1.0

4/25/14

2.25

4/25/14
5/6/14
5/8/14
5/19/14

Receive AUSA response
EAJA [31], review
Cy to Pls
Research EAJA reply
Draft, file “ “ [32]
Lyme research

.25
2.0
2.0
1.0

5/20/14

Email Gregg Skall

.25

3/17/14

4/4/14
4/4/14
4/4/14
4/9/14
4/9/14
4/10/14

.25
.25

Unnecessary
Unnecessary

1.0

Unnecessary

.5

Unnecessary

.25
.5

Unnecessary

.25
.25

Vague,
Unnecessary
Vague,
Unnecessary

Vague,
Unnecessary
Vague

14

Allowed/disallowed and
reason
Disallow – relationship to
case not shown
Allow

Allow
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown
Allow
Allow
Allow
Allow
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown
Allow
Allow
Allow
Allow
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown

8/5/14

“ “ research

1.0

9/29/14

1.0
3.0

Allow

9/30/14
10/2/14
10/3/14

Get orders, costs, read,
analyze [33]
“ cy to Pls, research begin
new draft of EAJA
application, edit,
Itemize in more detail
Email pls about EAJA
“ “ LDUC, get replies

Disallow – relationship to
case not shown
Allow

3.0
.5
.25

10/9/14

“

.25

10/13/14
10/18/14

Email AUSA re confer
Amended EAJA [34]
email (supplements)
Corrections [35] and #1,
#2, #3 supp.
Email to/fr AUSA re
EAJA
AUSA response [37]
Review
Draft affidavit for Pls,
email it
Draft reply w affidavit &
e-file [38]
e-mail Gregg Skall

.25
3.0

Allow
Allow
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown
Allow
Allow

2.0

Allow

1.0

Allow

.25
1.0
1.0

Allow
Allow
Allow

2.0

Allow

9/30/14

10/20/14
11/1316/14
11/18/14
11/18/14
11/20/14
11/21/14
12/5/14
1/20/15
2/4/15
2/4/15
2/9/15
2/15/15
2/20/15
2/20/15
2/27/15
3/15/15
4/20/15

Research, draft, file
Motion to Reopen [39]
OPM 2/4/15 letter from
Stuart, review
Email AUSA, pls, AUSA
ext req
Phone conf. AUSA, email
Research (elec)
AUSA files response to
mtn [41]
Review “
Draft, file reply [42]
Elect research (updates on
Lyme)
Elect research “ “

.25

Vague

unrelated

Vague

2.5

Disallow – relationship to
case not shown
allow

1.0

Allow

.5

Allow

.5
.5

Allow
Allow – response to OPM
letter of 2/4/15
Allow

Vague;
unrelated

.25
1.0
2.0
1.0
1.0

Vague;
unrelated
Vague;
unrelated

15

Allow
Allow
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown

5/15/15

5/15/15
5/20/15

OPM letter w/
attachments
Review, compare charts
after 2008
Letter, e-mail Pls
Research

6/1-2/15

4 e-mail

.25

6/5/15

Phone conf. w Pls

.5

6/6/15

Review spreadsheets from
Pls

1.0

6/11/15

e-mail Pls

.25

6/12/15

Research re: OPM letter,
attachments
Email Susan Green

2.0

5/15/15

6/12/15

.25

Allow

2.0

Allow

1.0
2.0

Allow
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Allow – relates to
enforcing Court’s Order
Disallow – relationship to
case not shown
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Allow: Response to

Vague;
unrelated

.25

Vague

6/14/15

Study e-mail fr Pls, Lyme
research

.5

Vague;
unrelated

6/15/15

““““

1.0

Vague;
unrelated

6/16/15

“ “ various articles “

1.0

Vague;
unrelated

6/19/15

““““

.5

Vague;
unrelated

6/22/15

My certified letter to OPM 2.0

16

w attachments

6/22/15

Copy, mail

.5

6/2530/15
8/4/15

Various e-mail, synopsis
of case to LDUC
Update LDUC on case
status
Work on finding expert w/
TASA
Visit w Re. Chris
Smith/staff in DC get Pat
Smith info in NJ
TASA e-mail/phone, talk
w MD expert
Research new ILADS
Guidelines

.5

unrelated

.5

unrelated

9/2/15

Various e-mail re:
Guidelines

1.0

9/15/15

e-mail, phone call w Pat
Smith, “ Pls, RI att’y,
TASA re experts
Letters to OPM, certified,
re ILADS Guidelines, new
material
Order re: motion to
Reopen [43]
Review “. e-mail Pls,
LDUC

1.0

Order re EAJA, “ “
Review “
E-mail to/fr AUSA (4)
Walter Snow e-mail re
ILADS Guidelines
Mail, also e-mail, 2 orders
to Pls

.25
1.0
.5
.25

8/18/15
8/28/15

9/2/15
9/2/15

9/2123/15
9/24/15
9/24/15

9/24/15
9/24/15
9/25/15
9/26/15
9/28/15

1.0
1.0

unrelated

.5
1.0

Unrelated;
block bill

2.0

Disallow; relationship to
case not shown
Allow: relating to letter
9/21-23/15 to OPM
regarding “new ILADS
Guidelines”
Disallow; relationship to
case not shown (does not
state the recipient or
subject of the emails)
Disallow; relationship to
case not shown
Allow: letter to OPM
regarding “new ILADS
Guidelines”
Allow

.25
2.0

5/15/15 letter from OPM
requesting rebuttal of
findings
Allow: Response to
5/15/15 letter from OPM
requesting rebuttal of
findings
Disallow – relationship to
case not shown
Disallow; relationship to
case not shown
Disallow; relationship to
case not shown
Disallow; unrelated to
case

unrelated

.5

17

Block billed with some
unrelated; allow 1.75
hours for review & email
to Pls; disallow .25 hours
for email to LDUC
Allow
Allow
Allow
Disallow; relationship to
case not shown
Allow

9/29/15

e-mail Pat Smith, AUSA

.25

10/8/15
10/8/15

Get Pls address, e-mail
Research motion to
enforce
Draft, file “ “ “
Email LDUC

.25
1.0

Get new expert name fr
TASA
Call “ “ discuss case

.25

10/26/15
10/26/15

Get AUSA Response [46]
Review “, e-mail Pls,
LDUC

.25
1.0

10/28/15

e-mail AUSA (receipt of
EAJA $), seek ext for my
Reply, phone conf
Phone conf AUSA
File my ext req [47]/order
[48]
3 e-mail LDUC

.5

allow

.25
1.0

allow
allow

Research Reply, cy CDROM
Do, file “ [49], mail to Pls
AUSA seeks ext for surreply
Order “ [51]
Mail, file CD-ROM
e-mail, tele conf OPM
att’y re: CD-ROM
teleconf AUSA, ext
Notice “
e-mail to/fr Pls re “ , look
at original w C&H staff
(can’t tell source)
AUSA files sur-reply,
exhibits
Download and study
e-mail fr Susan Green,
Lymeliter “ to/fr Pls,
study full article (NGR
drops IDSA guidelines)

2.0

Disallow, relationship to
case not shown
allow

2.25
.25

Allow
Allow

.25
.25
1.0

Allow
Allow
Allow

1.0

Allow

.25

Allow

2.0
1.5

Allow
Disallow – relationship to
case not shown

10/9/15
10/9/15
10/20/15
10/21/15

11/4/15
11/56/15
11/68/15
11/17/15
11/19/15
11/20/15
11/23/15
11/24/15
12/2122/15

12/30/15

1/4/16
1/4/16
2/18/16

2.0
.25

unrelated

Vague;
unrelated

.5

.5

Vague as to
LDUC; block
billed

Vague;
unrelated

Block bill

18

Disallow: Block; some
relationship not shown;
otherwise vague
Allow
Allow
Allow
Disallow; relationship to
case not shown
disallow – relationship to
case not shown
disallow – relationship to
case not shown process)
allow
Allow .75; disallow .25
for email to LDUC

3/3/16

e-mail LDUC

.25

3/7/16

Do, file Motion to Amend
[56] re NGR guideline
changes
TASA e-mail re expert
fees
e-mail LDUC, re expert
fee request
TASA phone and e-mail
re expert MD
Get Ct. Order to AUSA to
produce AR [57], email
LDUC & Pls
e-mail to/fr AUSA re
response, motion to seal
AR, portions, get motion
[58] and AR portions [59],
read, UNM research
Do, file my response [60]
e-mail to/fr AUSA re
missing pages
e-mail fr Jenna L-T

1.5

Lyme research fr “ read,
study
“ “ fr various Lyme
organ’s
Get approve ext fr AUSA
(reply)
e-mail various Lyme
organizations
LDUC e-mail

1.0

Tuttle e-mail, CDC
corruption (OPM
recognizes chronic Lyme)
Oregon Lyme legislation
research
Research, draft Reply re
Seal [62]
Discuss w AUSA, ext [63]
e-mail LDUC, Jenna,
Theresa (Oregon) R.I.
Atty’s, Mass
organizations

.25

3/18/16
5/4/16
7/18/16
7/20/16

8/2-3/16

8/5/16
8/5/16
8/5/16
8/15/16
8/1718/16
8/1718/16
8/2425/16
9/4-5/16
9/6/16

9/6/16
9/6/16
9/7/16
9/9/16

Vague

.25
.25

Unrelated

.25
.75

Unrelated as to
LDUC

Disallow – relationship to
case not shown
Allow

Disallow – relationship to
case not shown
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown
Allow .5; Disallow .25 as
to LDUC

2.0

Allow

2.0
.5

Allow
Allow

.25

Disallow – relationship to
case not shown
Disallow – not shown to
be related to the case
Disallow – not shown to
be related to the case
Allow

1.0

Vague;
unrelated
Vague;
unrelated

.25
.5

Vague

.25

unrelated

.25

unrelated

2.0
.25
.5

Vague;
unrelated

19

Disallow – not shown to
be related to the case
Disallow – not shown to
be related the case
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown
Allow
Allow
Disallow – relationship to
case not shown

9/13/16

Research, study various
Lyme e-mail
Get Order re seal [64]
e-mail various Lyme
organ. Re R.I. trip
Get, read Order
granting/denying claims
[65], circulate copies
Study Order, take notes
e-mail to/fr Jenna, Lyme
research
“ “ LDUC, “ “

1.0

e-mail to/fr Pls,
attachments ($$
evaluations), do my
analysis ($$)
e-mail to/fr AUSA re
OPM ($$)
e-mail LDUC, Oregon,
Jenna (2)
e-mail AUSA re
payments, interest
“ “ “ my 2015 September
letters
“ fr OPM att’y re 10/6/16
questions
LDUC e-mail, research
Motion reconsid.

2.0

Disallow – relationship to
case not shown
Allow
Disallow – relationship to
case not shown
Allow .75; Disallow .25
for “circulate copies” as
recipient(s) not identified
Allow
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown
Allow

.25

Allow

2.0

10/25/16

Motion for
reconsideration, [66] file
Give OPM new Pls
address for payments
e-mail fr LDUC, Jenna

.25

Vague

11/3/16

Calls re AUSA ext [67]

.25

Mtn reconsider
not successful

11/10/16,
11/14/16
11/22/16,
11/23/16
11/22/16,
11/23/16

Draft EAJA motion(s), email
Various e-mail, rec
discrepancies
Rec and study AUSA
Response, “

3.25

9/13/16
9/19/16
9/20/16

9/20/16
9/2122/16
9/2223/16
9/30/16

9/30/16
10/3/16
10/6/16
10/12/16
10/12/16
10/1617/16

10/17/16
10/24/16

Vague

.25
.5
1.0

1.0
1.0
.5

.5

Vague
Vague;
unrelated

.25

Disallow – relationship to
case not shown
Allow

.25

Allow

.25

Allow

4.25

Vague;
unrelated

Vague (part of
block bill);
unrelated; Mtn
Reconsider not
successful
Mtn reconsider
not successful

.5

1.25

Vague

3.0

Mtn reconsider
not successful

20

Disallow: LDUC = not
relevant; research is too
vague; mtn reconsider; not
successful
Disallow - related to mtn
reconsider; not successful
Allow
Disallow – not shown to
be related to the case
Disallow - related to mtn
reconsider; not successful
Allow
Disallow – relationship to
case not shown
Disallow - related to mtn
reconsider; not successful

11/28/16

Get extension Okd, file
Notice [69]
12/18/16, Research, draft [Reply],
12/19/16 file [70]
12/21/16 e-mail Glibowskis

.5

1/2/17

e-mail Glibowskis

.25

1/2/17

Study discrepancies

1.0

1/3031/17

e-mail, research “

.5

9/11/17

e-mail, phone
conversations re Lyme
conf
Rec Final Judgment/Order
[71, 72]
Study “, transmit copy

.5

9/2728/17
10/2/17

e-mail to/from Glibowski

.5

Phone conf Glibowskis

1.0

10/3,
4/17

e-mail AUSA

.25

Total Hours Requested
Total Hours Disallowed
Total Hours Allowed

142.5
51.75
90.75

9/22/17
9/23/17

1.0
3.0

.25
1.5

Mtn reconsider
not successful
Mtn reconsider
not successful

Anything
beyond status
updates
unwarranted
Anything
beyond status
updates
unwarranted
Vague;
unrelated

Disallow - related to mtn
reconsider; not successful
Disallow - related to mtn
reconsider; not successful
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown
Disallow – relationship to
case not shown

Disallow – relationship to
case not shown

Disallow – relationship to
case not shown

Mtn reconsider
not successful
Mtn reconsider
not successful
Mtn reconsider
not successful
Mtn reconsider
not successful

Disallow - related to mtn
reconsider; not successful
Disallow - related to mtn
reconsider; not successful
Disallow - related to mtn
reconsider; not successful
Disallow - related to mtn
reconsider; not successful
Disallow – relationship to
case not shown

@ $125.00/hr

Fee allowed: $11,343.75

21