- 40 -
b. Hours Subject to “Billing Judgment” Inference
Although we accept Izen’s contention that the time charges
he excluded from the Sjostrom bill are bona fide, see supra Part
III.C.1.b., his exclusion of those charges undermines his claim
that the additional hours are properly chargeable to the
Government. Just as a recent arm’s-length sale of property is a
reliable indicator of that property’s fair market value, see,
e.g., Huber v. Commissioner, T.C. Memo. 2006-96, a
contemporaneous invoice is a reliable indicator of the “hours
reasonably expended” aspect of the lodestar calculation. As the
Supreme Court recognized in Hensley v. Eckerhart, supra at 434:
“In the private sector, ‘billing judgment’ is an
important component in fee setting. It is no less
important here. Hours that are not properly billed to
one’s client also are not properly billed to one’s
adversary pursuant to statutory authority.” Copeland
v. Marshall, 205 U.S. App. D.C. 390, 401, 641 F.2d 880,
891 (1980) (en banc).
We believe it likely that most of the discrepancies between
the Sjostrom bill and the Izen fee request are attributable to
Izen’s exercise of billing judgment. Indeed, except as noted in
the next paragraph, the new entries in the fee request (and
existing entries with time increases) relate to procedural or
peripheral matters, administrative tasks, or other expenditures
of time that strike us as prime candidates for Izen’s “billing
judgment” cleaver.28 For instance, the fee request, but not the
28 One of the new entries is actually a duplicate entry for
(continued...)
Page: Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 NextLast modified: May 25, 2011