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Glibowski v. United States Office of Personnel Management

United States District Court, D. New Mexico

May 10, 2018




         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.


         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');">23');">23');">23, p. 2');">p. 2] OPM upheld the vast majority of the denials of benefits on the ground that the treatments were not medically necessary. [Doc. 23');">23');">23');">23, p. 1');">p. 16');">p. 1');">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');">23');">23');">23, p. 101] The Court remanded the appeal to OPM and ordered OPM to allow additional evidence as necessary as well as to clarify the basis for its decision. [Doc. 23');">23');">23');">23, p. 1');">p. 101');">p. 1');">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');">23');">23');">23, p. 1');">p. 101');">p. 1');">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. 1');">p. 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');">p. 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');">p. 2-3] Thereafter, OPM issued its decision on October 23');">23');">23');">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 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');">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. 3');">p. 32');">p. 3');">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 long-term administration of antibiotics to treat Lyme disease. [Doc. 65, pp. 1');">p. 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');">p. 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');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76, p. 1');">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');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76, p. 2');">p. 2] OPM argues that the fee request is unreasonable in several respects. First, OPM states that the request is not supported by contemporaneous records. [Doc. 76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76, p. 3');">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');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76, p. 2');">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');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76, p. 2');">p. 2] Fourth, OPM argues that several tasks were unnecessary and failed to advance the litigation. [Doc. 76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">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');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76, p. 9; Doc. 33, p. 2');">p. 27] Finally, OPM argues that Plaintiffs should not receive attorney's fees with respect to their unsuccessful motion to reconsider. [Doc. 76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76');">76, p. 1');">p. 10]


         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).

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 ...

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