UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2016 MSPB 28

Docket No. DC-1221-11-0466-A-1


### Elissa Rumsey, Appellant,

v. Department of Justice, Agency. July 21, 2016

Robert A. Burka, Esquire, Washingt on, D.C., for the appellant. Kristen Bucher Hahn, Esquire, and Morton J. Posner, Esquire, Washington, D.C., fo r the agency. Thomas Devine, Esquire, Washington, D.C., fo r the amicus curiae, Government Accountability Project.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

OPINION AND ORDER
¶1 The appellant has petitioned for review of an addendum initial decision that awarded her $2,801 in costs and $7,084 in attorney fe es to one of her three attorneys but denied any attorn ey fees for the services of her two other attorneys.
For the reasons discussed below, we GRANT the pe tition for review, VACATE
the addendum initial decisi on insofar as it applied 5 U.S.C. § 7701 (g) to this proceeding, AFFIRM the addendum initial decision insofar as it found that attorney fees were due for the legal se rvices of the DiMuroGinsberg law firm,2

AFFIRM the addendum initial decision in sofar as it found that no attorney fees were due for the legal services of Beth Slavet, REVERSE the addendum initial decision insofar as it found that no attorney fees were due for the legal services of Robert Burka, and MODIFY the a ddendum initial decision concerning the amount of attorney fees a nd costs awardable to the a ppellant. We FORWARD to the Washington Regional Office the appellant’s allegation th at she is entitled to a higher performance appraisal and awar d for adjudication as a petition
for enforcement.

BACKGROUND ¶2 The appellant is a GS-14 Compliance Monitoring Coordina tor in the Office
of Juvenile Justice and De linquency Prevention (OJJDP). Rumsey v. Department of Justice , 120 M.S.P.R. 259 , ¶ 2 (2013). One of the f unctions of OJJDP is to award grants to organizations and then en sure that they use the grant money in compliance with the te rms of the grant. Id. The appellant disc losed, inter alia,
her belief that one of the grantees submitted fraudulent da ta in connection with its program compliance and that agency managers were covering up this fraud. Id. , ¶¶ 17-19. Thereafter, the appellant filed an indivi dual right of action (IRA) appeal in which she alleged that the agency reprised ag ainst her in a variety of ways, including, inter alia, giving he r improperly low pe rformance ratings, conducting a reorganization that move d many of her job duties to other employees, cancelling her telework agre ement, and pressuring her to accept a
detail. Id. , ¶ 3

. The administrative judge denied the appellant’s request for
corrective action in its entirety. Id. , ¶¶ 4

‐ 5. After the appell ant filed a petition for review, the Board determ ined that, while a “close ca se,” the limited evidence
in the record was insufficie nt to find that the agency met “its burden of proving by clear and convincing eviden ce that it would have give n the appellant the same rating absent any whistleblowing.” Id ., ¶¶ 35-38. The Bo ard also found that, although the agency presente d evidence in support of its position, the Board was3

“not left with the firm belief that the agency would have cance lled the appellant’s telework agreement” abse nt her protected activity. 1 Id ., ¶ 34. The Board ordered the agency to take correc tive action regarding the cance llation of the appellant’s telework agreement with the agency and her 2007 performance rating. Id. , ¶ 49. ¶3 The appellant subsequently filed a motion for attorn ey fees in which she sought fees for all three of the attorneys who had repres ented her: Beth Slavet, who represented the appellant before th e Office of Special Counsel (OSC), as well as through the hearing in the IRA appeal; the DiMuroGi nsberg law firm, which represented the appellant from J une through July 2011, including at the hearing; and Robert Burka, who represen ted the appellant on petition for review
to the Board and in this attorney fee (addendum) proceed ing. Attorney Fee File (AFF), Tab 1. In her addendum initial de cision, the administ rative judge granted attorney fees of $7,084, which was li mited to the representation by the DiMuroGinsburg law firm, plus costs of $2,801. AFF, Tab 16, Addendum Initial Decision (AID). The admini strative judge found that no award of attorney fees should be made for the legal services of either Ms. Sl avet or Mr. Burka. AID
at 5

‐ 9. The administrative ju dge further found that the lodestar amount (hourly rate multiplied by the numbe r of reasonable hours) fo r the DiMuroGinsburg law firm, as well as awarda ble costs, must be redu ced by 80% because of the appellant’s limited degree of succe ss in her IRA appeal. AID at 9

‐ 11. ¶4 In a timely filed petition for revi ew, the appellant argues, among other things, that she is en titled to an award of attorney fees for the work performed by all three of her lawyers a nd that her attorney fees award should not have been

1 Although the Board ordered the restoration of the appellant’s telework agreement, her telework agreement already had been restored in 2008 as the result of the resolution of a grievance, 2 years before she filed her IRA appeal. Attorney Fee File, Tab 8 at 23

‐ 24.4

reduced by 80%. 2 Petition for Review (PFR) File , Tab 3. The agency responded in opposition to the petition for review, and the appellant replied to the agency’s

response. 3 PFR File, Tabs 7

‐ 8.

ANALYSIS The appellant is not entitled to an aw ard of attorney fees for Ms. Slavet’s legal services. ¶5 Before addressing whether the two ot her attorneys who represented the appellant should be entitled to an award of attorney fe es, we are presented with
the threshold issue of whethe r attorney fees should be aw arded to Ms. Slavet. As mentioned above, the administ rative judge found that an award of attorney fees for Ms. Slavet’s legal services was not warranted. AID at 7-9. The appellant submitted copies of Ms. Slavet’s invoices, but stated that she was engaged in a fee dispute with Ms. Slav et and did not vouch for th e reasonableness of the itemized charges listed on the invoices. AFF, Ta b 7 at 4-5; Tab 11 at 4

‐ 5, 7

‐ 8. In fact, the appellant acknowledged that much of Ms. Slavet’s work was
“excessive” and that her i nvoices were “full of meri tless, unrecoverable, and frivolous legal work.” AFF, Tab 13 at 23. ¶6 For the reasons stated by the administrative judge, AID at 7

‐ 9, Ms. Slavet’s invoices do not adequately document the legal services provided,

2 The Government Accountability Project has filed an amicus brief in support of the petition for review in which it argues that affirming the initial de cision would have a chilling effect on the exercise of rights under the Whistleblower Prot ection Act, in that whistleblowers will “lose by winning if only token compensation is provided for six figure litigation burdens.” Petition for Review (PFR) File , Tab 6 at 2.

3 The appellant filed a motio n for leave to file a supple mental pleading. PFR File, Tab 10. The Clerk of the Board granted the appellant’s motion and accepted into the record both the supplemental pleading and the agency’s response. PFR File
, Tabs 13

‐ 14, 17. The Clerk also i ssued a Briefing Order requesting a dditional argument from the parties on certain issues, and both parties and the amicus curiae have provided briefs. PFR File, Tabs 16, 18

‐ 21.5

and she correctly found that the Board has no factual basi s to conclude that any
amount of fees claimed were reasonable. Because the appellant has not met her burden of proving by pr eponderant evidence that the fees were reasonable, no fees are due, and, in light of that, we need not reach the agency’s argument that
an award of fees would violate conflict of interest laws at 18 U.S.C. § 205 to the
extent that Ms. Slavet late r became a Federal employee. We now will address the appellant’s other attorneys. Because the controlling legal aut hority for this proceeding is 5 U.S.C. § 1221 (g)(1)(B), it is the appell ant, and not her attorney, who is entitled to an award of attorney fees. ¶7 It is well settled that attorney fees cannot be aw arded against the Federal Government unless specifica lly authorized by a statut ory waiver of sovereign immunity. Brenner v. Departmen t of the Interior , 119 M.S.P.R. 399 , ¶ 5 (2013); see Applegate v. United States , 52 Fed. Cl. 751, 759 (2002), aff’d , 70 F. App’x 582 (Fed. Cir. 2003). Two of the statutes that authorize the Board to award attorney fees are 5 U.S.C. § 7701 (g)(1), which applies when the appellant is a prevailing party in an appeal under 5 U.S.C. § 7701 and an award is warranted in the interest of justice, and 5 U.S.C. § 1221 (g)(1)(B), which applies when the
Board orders corrective action in a whistleblower appeal to which 5 U.S.C. § 1221 applies. 5 C.F.R. § 1201.202 (a)(1), (4). Subsection (g)(1)(B) of section 1221 applies in this case because the Board ordered co rrective action in the merits proceeding base d on its finding of a prohib ited personnel practice. ¶8 In analyzing the motion fo r attorney fees and cost s in this appeal, the administrative judge cited both 5 U.S.C. §§ 7701 (g) and 1221(g). AID at 1. The analysis of an atto rney fee motion under 5 U.S.C. § 7701 (g)(1) and 5 U.S.C. § 1221 (g) is similar in severa l respects. Both require, for example, that the movant have been a prevailing party, whic h is not disputed in this case. There are at least two significant di fferences, however. First, an award of attorney fees
under 5 U.S.C. § 7701 (g)(1) must be “warranted in th e interest of justice.” No6

such requirement exists for an award of attorney fees under 5 U.S.C. § 1221 (g)(1)(B) as that provision states, “[c]orrective action shall include attorney’s fees . . . .” A second difference relates to the person entitled to receive such an award, i.e., whether it is the pa rty or the attorney who is entitled to receive attorney fe es. The text of 5 U.S.C. § 7701 (g)(1) does not address this issue directly; it merely states that th e Board “may require payment by an agency
involved of reasonable attorn ey fees incurred by an employee . . . .” The Board has held, however, that it is the attorney, rather than the appellant, who is entitled to receive attorney fe es under section 7701. Chin v. Department of the Treasury , 55 M.S.P.R. 84 , 87 n.2 (1992); see Bonggat v. Department of the Navy , 59 M.S.P.R. 175 , 180 (1993). In contrast, se ction 1221 provides unambiguously that “the agency involved shall be liable to the employee , former employee, or applicant for reasonable attorney’s fees and any other reasonable costs incurred.” 4 5 U.S.C. § 1221 (g)(2) (emphasis added). The administrative judge therefore erred in relying on Jensen v. Department of Transportation , 858 F.2d 721 (Fed. Cir. 1988), in ruling that it is the attorney who is legally entitled to an award of attorney fees in an IRA appeal, as Jensen arose under 5 U.S.C. § 7701 (g), not 5 U.S.C. § 1221 (g).
The appellant is entitled to an award of at torney fees for the legal services of the DiMuroGinsberg law fi rm and for Mr. Burka’ s legal services. ¶9 Neither party has objected to the ad ministrative judge’s finding that the appellant was entitled to an award of attorney fees for the legal services of the

4 Subsection (g)(2) applies to all cases in which the Board’s decision is based on a finding that the agency has committe d a prohibited personnel practice. Subsection (g)(1)(B) is limited to a subset of those cases, ones in which the Board orders corrective action in an IRA appeal after finding th at the agency has committed a prohibited personnel practice. See 5 U.S.C. § 1221 (a), (e)(1). The provision in subsection (g)(2) that the agency shall be liable “to the employee” for reasonable attorney fees thus applies to all cases under subsection (g)(1)(B).7

DiMuroGinsburg law firm. AID at 9. We agree with the ad ministrative judge’s finding and see no reason to disturb it. However, the administrative judge found that an award of attorney fees for Mr. Bu rka’s legal services was not warranted. AID at 5-7. As discussed below, we disagree with the ad ministrative judge’s finding and conclude that fees are due for Mr. Burka’s services. ¶10 The appellant and Mr. Burka gave consistent accounts of the oral agreement under which Mr. Burka agreed to represent the appe llant before the Board following the issuance of the initial decision in the merits proceeding: (1) he promised her that his work on the petition for review would cost her nothing; (2) if his efforts on the appellan t’s behalf were successful, he would apply for an award of attorney fees; (3) he would give the a ppellant any fees he was awarded up to the amount she already ha d paid to the other attorneys; (4) the same understanding applied to any serv ices Mr. Burka might provide in connection with any addendu m proceeding after the Bo ard ruled on the petition for review; and (5) if any funds for Mr. Burka’s services we re left over, they would be donated to charity after consulta tion with the appell ant. AFF, Tab 4 at 6; Tab 6 at 9-10. Mr. Burka agreed to these arrangements “to ameliorate [the appellant’s] undoubtedly diff icult financial situati on caused by paying various counsel and litigation s upport vendors approximately $140,000.” AFF, Tab 4 at 6. Both the appellant and Mr. Burk a characterized their arrangement as a 100% contingency fee. Id. ; AFF, Tab 6 at 10. ¶11 In finding that the appellant was not entitled to an award of attorney fees for Mr. Burka’s legal services, the administrative judge cited Krape v. Department of Defense , 97 M.S.P.R. 430 , ¶ 12 (2004), and Gensburg v. Department of Veterans Affairs , 85 M.S.P.R. 198 , ¶ 13 (2000), for the proposition that the agreed-upon ra te ($0 in this case) is presumed to be reasonable, and that this presumption can be rebutted on ly by convincing evidence that the agreed

‐ upon rate was not based on marketplace considerations and that the attorney’s rate for similar work was cu stomarily higher, or by showing that the8

attorney agreed to such a rate only because of th e employee’s redu ced ability to pay. AID at 5-6. The administrative judge found that the presumption was not rebutted because Mr. Burka agreed not to ch arge the appellant any attorney fees. AID at 6. On review, the appellant argues that both prongs of the legal doctrine
enunciated in Krape and Gensburg apply in this case. ¶12 As discussed above, the fe e arrangement in questi on was essentially for a 100% contingency fee, i.e., no fee unless the appellant be came a prevailing party,
in which event Mr. Burka woul d seek an award of attorney fees at market rates. Because liability for atto rney fees and costs under 5 U.S.C. § 1221 (g)(1)(B) is to the appellant and not to the a ttorney, it is irrelevant th at the attorney elected not to retain any of the fees awarded. Th e record also shows that Mr. Burka, who retired in 2010 after practicin g law for nearly 40 years, al beit in a different area of legal expertise, routinely billed for th e provision of legal services at a rate of $850 per hour. AFF, Tab 4 at 4. Thus, hi s customary rate for legal services was higher than the zero rate he charged the appellant. Finally, as noted above, Mr. Burka agreed to the fee arrangement because of the appellant’s “undoubtedly
difficult financial situation.” Id . at 6. In sum, we find that the appellant has presented convincing evidence that the 100% contingency rate agreed to by the appellant and Mr. Burka was due to her reduced ability to pay, not based on marketplace considerations, and Mr. Burka’s customary rate was higher. See Krape , 97 M.S.P.R. 430 , ¶ 12; Gensburg , 85 M.S.P.R. 198 , ¶ 13. ¶13 During the adjudication of the appell ant’s petition for review, the Board issued a Briefing Order on the issue of whether fees were “incurred” for Mr. Burka’s legal services within the meaning of 5 U.S.C. § 1221 (g)(2). PFR File, Tab 13. Upon reflection, we conclude that attorney fees were incurred for Mr. Burka’s legal services. Mr. Burka and the appellant had “an express or implied agreement that the fee award would be paid over to the legal representative.” There is no requirement that the attorney retain attorney fees for9

himself. 5 Thus, we conclude that the appellant is entitled to an award of attorney
fees for Mr. Burka’s legal services under 5 U.S.C. § 1221 (g)(1)(B).

Calculation of the lodestar. ¶14 The starting point for determining a reas onable attorney fee award in a case where the prevailing party did not obtain al l the relief requested is to take the hours reasonably spent on the litigation mu ltiplied by a reasonable hourly rate,
which is the “lodestar” the Board uses in determining the fee award. Hensley v.
Eckerhart , 461 U.S. 424 , 433 (1983); Guy v. Department of the Army , 118 M.S.P.R. 45 , ¶ 8 (2012). The initial calc ulation should exclude hours for which the prevailing party failed to provi de adequate documen tation, as well as
hours that were not re asonably expended. Hensley , 461 U.S. at 433-34; Guy , 118 M.S.P.R. 45 , ¶ 8. ¶15 Neither party has objected to the lode star determined by the administrative judge for the DiMuroGinsburg law fi rm, $35,419.44, repr esenting 202.45 hours of billable time (attorney time billed at $350 per hour and paralegal and clerical time billed at $75 per hour). AID at 9; AFF, Tab 5 at 6. We therefore turn to the
lodestar amounts fo r Mr. Burka. ¶16 The burden of establishing the reasona bleness of the hours claimed in an attorney fee request is on the party seeking fees. Casali v. Department of the Treasury , 81 M.S.P.R. 347 , ¶ 13 (1999). The Board us ually finds an attorney’s customary billing rate to be his “reasonable” rate. Id. , ¶ 9. The customary billing rate may be established by s howing the hourly rate at wh ich the attorney actually

5 See Astrue v. Ratliff , 560 U.S. 586 , 589, 597-98 (2010) (award ing attorney fees under Equal Access to Justice Act where the fee aw ard did not ultimately go to the attorney, but benefitted the party, because she “owed the Government a debt that predated the District Court’s approval of the award”); National Treasury Employees Union v. Department of the Treasury , 656 F.2d 848 , 853 (D.C. Cir. 1981) (stating that, “Lawyers may, if they wish, voluntarily donate some or all of their fees to ch arity, or even to their employers, just as they may spend thei r other monies as they please.”).10

billed other clients for similar work during the period for which the attorney seeks fees or by evidence of the market rate for simila r work in the community.
Id. The relevant market rate for the de termination of the re asonableness of an attorney fee request is the forum for the litigation, which in this case is the Washington, D.C. me tropolitan area. ¶17 Mr. Burka stated that he has been engaged in the practice of law since 1971 in both the private sector and in Federa l Government positions and that he is currently “retired,” but has continued to practice on a voluntary, nonfee basis. AFF, Tab 4 at 4. He stated that his published rate for the provision of legal services was $850 per hour when he retired as an active partner in his law firm in
2010. Id. at 6. He further stated that his Laffey rate 6 was $495 per hour in 2011-2012, which he indicated would compar e favorably to the rates he routinely charged commerci al clients. Id. Mr. Burka acknowledged that this is the first case he has ever litiga ted before the Board, although he has litigated administrative appeals in othe r forums, as well as in the U.S. Supreme Court and
several Federal cour ts of appeal. Id. at 5. He also stated that he has experience in cases involving disputes over attorney fees. Id. at 5

‐ 6.

6 The Laffey Matrix is a schedule of hourly rates allowed by the U.S. District Court for the District of Columbia in Laffey v. Northwest Airlines, Inc ., 572 F. Supp. 354 , 371, 374-75 (D.D.C. 1983), reversed in relevant part , 746 F.2d 4, 24- 25 (D.C. Cir. 1984) (holding that an attorney’s customary billing rate, and not a matrix pur porting to reflect the “true value” of the atto rney’s services, is the a ppropriate starting point for determining the reasonable hourly rate), overruled by Save Our Cumberland Mountains, Inc. v. Hodel , 857 F.2d 1516, 1524 (D.C. Cir. 1988) (holding that the prevailing market rate is the appropriate basis for calculatin g fees for private attorneys who represent individuals “at reduced rates reflecting non- economic goals”). It purports to show the prevailing market rates for atto rneys in the District of Co lumbia and is prepared and maintained by the United States Attorney’s Of fice for use in District of Columbia cases where a statute permits the prevailing party to recover “reasonable” attorneys’ fees. Caros v. Department of Homeland Security , 122 M.S.P.R. 231 , ¶ 9 n.5 (2015).11

¶18 Establishing a reasonable hourly rate for Mr. Burka in the customary way—by showing the hourly rate at which he actually billed other clients for similar work during the period at issue— is not feasible, both because he was
semi-retired at the time in question and because, as he conceded, this is the first time he ever practiced be fore the Board. As noted above, though, Mr. Burka has billed clients at the rate of $850 per hou r, and he has extensive experience in complex legal matters. However, becau se Mr. Burka previously has never litigated a Board appeal, we find it is not appropriate to apply the Laffey Matrix rate of $495 per hour as a reasonable one. See Brooks v. Department of Transportation , 33 M.S.P.R. 399 , 402 (1987) (determining that the Laffey Matrix was inapplicable under the ci rcumstances and that, instead , use of the lodestar in computing the amount of a reasonable attorney fee award was proper). We believe that, under the unique circumstances of this case, $3 50 per hour, the rate charged by one of the appellant’s ot her experienced legal counsel, the DiMuroGinsburg law firm (als o practicing in the Washi ngton, D.C. area), is the reasonable hourly rate. See Caros v. Department of Homeland Security , 122 M.S.P.R. 231 , ¶¶ 9-15 (2015) (finding that, notwithstanding the Laffey Matrix, the appellant’s attorney was enti tled to fees at a reasonable hourly rate of $250, not the requested $510, for legal work performed in the Washington, D.C. metropolitan area); see also Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542 , 543

‐ 44 (2010) (explaining the rele vant factors to take in to account when making a lodestar calculation; the superior performanc e of an attorney is considered only in “rare” and “exceptiona l” circumstances). ¶19 Having determined that $350 is a reason able hourly rate fo r Mr. Burka, we
next turn to the number of hours he reason ably expended on this litigation. There are two distinct periods of legal repr esentation involved he re: preparing the petition for review of the merits decision; a nd prosecuting the present motion for attorney fees, including plead ings on review. As to th e former period, Mr. Burka stated that he spent 152.65 hours prepar ing the petition for review, but he12

proposed that, in light of his unfamiliar ity with Board law and the case record, eliminating approximately one-third of the total hours spent on that document would be reasonable. AFF, Tab 4 at 7. The agency agreed that 100 hours of work was reasonable. AFF, Tab 8 at 17. Accordingl y, the lodest ar figure for Mr. Burka’s preparation of the petition fo r review in the merits proceeding is $35,000 (100 hours x $350/hour). ¶20 As to the latter period, it is well se ttled that an attorn ey’s time reasonably spent on an addendum proceeding such as a motion for attorney fees is compensable when an award of fees for the merits proceeding is in order. See,

e.g. , Guy , 118 M.S.P.R. 45 , ¶ 23; Driscoll v. U.S. Postal Service , 116 M.S.P.R.
662 , ¶ 30 (2011). Mr. Burka has provided evidence that he has devoted
289.3 hours to this addendum proceeding: 99.15 hours in the regional office proceeding; 92.5 hours preparing the peti tion for review; 36.5 hours in preparing a reply to the agency’s response to the petition for review; and 61.15 hours subsequent to that, incl uding responding to the Boar d’s Briefing Order. AFF, Tab 13 at 26-27; PFR File, Ta b 3 at 25, 64, Tab 8 at 14, 20, Tab 20 at 22. ¶21 After closely scrutinizing the submitte d evidence of the hours spent and the work product produced (totaling 16 pleadings) 7 by Mr. Burka during this addendum proceeding, we di vided our inquiry into an additional two periods:

7 Those pleadings consist of the following: A FF, Tabs 1 (motion for extension of time); 3 (motion for attorney fees); 4-6 (declaratio ns of Robert Burka, Jonathan Mook, and the appellant, with exhibits); 7, 11 (supplements to motion for attorney fees, with exhibits); 12 (duplicate and legible copies of both Tabs 7 and 11, except for addition of Exhibit C and one email in Exhibit B); 13 (reply to the agency’s response); PFR File, Tabs 1 (request for extension of time; declaration of Mr. Burka); 3 (petition for review, with appendices); 8 (reply to the agency’s respon se to the petition for review); 10 (motion for leave to file supplemental pleading); 14 (supplemental pleading); 18 (response to the Board’s Briefing Order, with exhibits ); and 20 (second response to the Briefing Order). See Appendices B-C, attached to this Op inion and Order (listing in detail all the pleadings filed by Mr. Burka during the addendum pro ceeding, including exhibits and appendices).13

(1) the time before the Board issued its August 26, 2015 Briefing Order at PFR File, Tab 13; and (2) any ti me thereafter. We concl ude, based on our review of the pertinent evidence, that some of the hours spent on the addendum proceeding
must be reduced. ¶22 In the process of reviewing the atto rney fees petiti on, we created a

seven ‐ page table that reflects Mr. Burk a’s requested hours during the addendum proceeding, providing a description of categories of work he performed, including: his communications with th e appellant; his communications with others (usually, the administrative judge, other attorneys, and/ or the Government Accountability Project); his gene ral research; a nd his drafting and completion of written products (pleadings). See Appendix A (attached to this Opinion and Order). In reviewing Mr. Burka’s fina l “Summary of Billable Hours,” PFR, Tab 20, Exhibit A, we also noticed in stances wherein he reported working on
several tasks simultan eously, which is labe led on the table as “Combined Tasks.”
We also created an outline of all of Mr. Burka’s pleadings in the addendum proceeding, at the initial and petition for review levels of litigation, which we compared against the re quested billable hours. See Appendices B-C (attached to this Opinion and Order). The last, or far right, of the columns on the table at Appendix A shows a breakdown of the hours (in bold) we awarded to Mr. Burka, after deducting the hours dealing with matters discu ssed below. ¶23 We find, for instance, that during the pre-Briefing Order period, Mr. Burka
should not be entitled to fe es for the conversations or emails he had with Ms. Slavet’s lawyer or for the pleadings (or sections of pleadings) they drafted during the addendum proceedi ng in their efforts to obt ain fees for Ms. Slavet, given that we have found above that she is not entitled to a ny fees. We have made an exception to this determination, however, for any such work Mr. Burka performed during the post-Briefing Or der period because we specifically instructed him to respond to our order concerning such fees. See Appendix A, attached to this Opinion and Order (item nos. 124-46, da ted from August 2614

through September 24, 2015

— denoted with asterisks

— reflecting the full reimbursement for all hours requested by Mr. Burka during the post-Briefing Order period). In addition, we have not awarded Mr. Burka for any fees incurred
for work that involved his discussions with , any emails sent to (or received from), or any work product provided to (o r received from), the Government Accountability Project. While the public -interest organizati on may have been advocating here for whistleblowe rs at large, it did not s how that it had contracted with the appellant to represent her indivi dually in this case, see Pickholtz v. Rainbow Techs., Inc. , 284 F.3d 1365 , 1375-76 (Fed. Cir. 2002) (noting that attorney fees require an attorney-client relationship), and an amicus curiae is not an adversarial party enti tled to attorney fees, see Carson v. Department of Energy , 64 F. App’x 234, 239-40 (Fed. Cir. 2003). 8 ¶24 Where applicable, we deducted about one-third of the total hours spent by Mr. Burka on issues in the addendum proceed ing pertaining either to his efforts in trying to obtain attorney fees for Ms. Slavet (absent the exception noted above concerning the post-Briefing Order period) or for work done in concert with the Government Accountability Project. We estimated the amount of time that Mr. Burka spent talking about Ms. Slavet ’s fees with the appellant because Mr. Burka did not provide a minute-by-minute breakdown of what he specifically discussed during their telephone calls, which admittedly would be difficult to do. We also point out that, in reducing thes e hours, we realize that we sometimes gave Mr. Burka the benefit of the doubt because we only deducted hours if he explicitly mentioned in hi s final “Summary of Billable Hours,” PFR, Tab 20, Exhibit A, that he was working on matters related to Ms. Slavet ’s fees or on tasks
associated with the Government Accountability Project’ s involvement in the case.

8 The Board may follow a nonpre cedential decision of the U.S. Court of Appeals for the Federal Circuit when, as here, it finds its reasoning persuasive. See, e.g. , Erlendson v. Department of Justice , 121 M.S.P.R. 441 , ¶ 6 n.2 (2014).15

¶25 Our inquiry does not end here, however. A further reducti on must be made for certain hours not reasonably attri butable to this addendum proceeding; namely, the hours that were devoted to the appellant’s contention that she should have received the highest performance ranking and associated performance bonus
for 2007 instead of the seco nd highest rating. AFF, Tab 3 at 9-10; Tab 13
at 9-10. In her addendum in itial decision, the administra tive judge correctly ruled that a motion for attorney fe es is not the proper vehicle for raising such a dispute, which should be raised in a pe tition for enforcement filed under 5 C.F.R. § 1201.182 . AID at 2, 7; see Roman v. Department of the Army , 72 M.S.P.R. 409 , 420 (1996), aff’d , 129 F.3d 134 (Fed. Cir. 1997) (Table); Bonggat , 59 M.S.P.R.
at 180. 9 We therefore conclude that attorn ey time spent on this issue should not be compensable in this pr oceeding. As the present record does not detail the specific number of hours spent by Mr. Bu rka on this issue, we find that an efficient way to estimate th e number of hours devoted to th is minor issue is to use the percentage of pages devoted on review to argument on this issue. By our calculation, Mr. Burka devoted approximate ly 11% of his argument in the petition for review and reply (4 pages out of 36) to this issue. Accord ingly, we reduce the number of hours for preparation of thos e two documents by approximately 11% from 71.67 to 63.79 hours (71.67 x .89 = 63.79). 10 See Appendix A, attached to

9 The appellant suggests that it would be appropriate to address this issue in this proceeding, as both parties have submitted ev idence and argument on the merits. PFR File, Tab 3 at 29-30. We declin e to do so. This is the sort of determination that should be made in the first instance by the administrative judge. See Owen v. U.S. Postal Service , 87 M.S.P.R. 449 , ¶ 9 (2000).

10 We decline to reduce the number of compensable hours attributable to this issue during the regional office proceeding for tw o reasons. First, we have no ready mechanism for calculating the number of hours devoted to this issue and a remand for such a minor matter is not warranted. Secon d, neither the agency nor the administrative judge advised the appellant during the regional office proceeding that this issue could not be reached in the addendum pr oceeding on attorney fees. Should the appellant prevail in a compliance proceeding as to her view of the proper performance16

this Opinion and Order (item nos. 88-119, dated from October 14, 2014, through January 14, 2015

— denoted in italics

— reflecting the 11% reduction for hours requested by Mr. Burka during this time frame). Coupled with the 92.48 hours spent in the regional office proceeding and the 61.15 hours spent on review after submission of the reply, we find that Mr. Burka reasonably spent 217.42 hours on this addendum proceeding. This brings the lode star for this addendum proceeding to $76,097.00 (217.42 hours x $350/hour). See id. at 4 (Block A is a tally of the total number of hours, 289.3, and the amount of fees that Mr. Burka requested in the addendum proceedi ng at the $495 per hour rate, equaling $143,203.50. Block B represents the 217.42 hours that we granted Mr. Burka for the addendum proceeding

— after making the appropriate deductions

— multiplied by the $350 hourly rate, to equa l $76,097.00 in attorney fe es for that period).
The administrative judge correctly reduced th e lodestar a ttorney fees to account for the appellant’s minimal succe ss in this litigation. ¶26 When, as here, a prevailing party makes more than one clai m for relief, and
the claims involve a common core of fact s or are based on rela ted legal theories,
the fee determination should reflect the overall relief obtained in relation to the hours reasonably expended. Guy , 118 M.S.P.R. 45 , ¶ 19. In a case in which the party seeking fees obtains only “partial or limited su ccess,” the tribunal awarding fees has discretion to make an equitabl e adjustment as to what reduction is appropriate. Hensley , 461 U.S. at 436-37; Guy , 118 M.S.P.R. 45 , ¶ 20. That the appellant’s success was only “par tial or limited” in this ca se is not in dispute; she claimed that she was subjec ted to many more retaliat ory personnel actions than the two actions found by the Board to be retaliation for her protected whistleblowing. One of these two actions was a $938 performance award and the other, the terminatio n of a telework agreement, alr eady had been resolved through

rating and award for 2007, she then could file a motion for attorney fees for that proceeding.17

the grievance process 2 ye ars before the appellant filed this IRA appeal. Rumsey , 120 M.S.P.R. 259 , ¶¶ 3, 49. ¶27 In doing an equitable adjustment of a ttorney fees on account of a prevailing party’s partial or limited success, the tribunal may adjust th e lodestar downward by identifying specific hours that should be eliminated or, in the alternative, reducing the overall award to account fo r the limited degree of success. Hensley , 461 U.S. at 436-37; Guy , 118 M.S.P.R. 45 , ¶ 20. The former method should be used where it is practicabl e to segregate the hours de voted to any related but unsuccessful claims, and only when the ad ministrative judge is unable to do so should she impose a perc entage reduction. Guy , 118 M.S.P.R. 45 , ¶ 20. The administrative judge is generally in a better position than the full Board to determine whether it is possible to reduce the time by specific hours. Id. The administrative judge in this case determ ined that it was not practicable to segregate the hours devoted to related but unsuccessful claims. AID at 9-10. Because neither party has questioned th at determination on review, it is appropriate to adjust the overall aw ard to account fo r the appellant’s
limited success. ¶28 That the Board found that “only” tw o of the disputed personnel actions were retaliation for protected whistl eblowing does not control how much the
lodestar should be reduced to account for the appe llant’s limited success. 11 In

11 In determining that the lodestar attorney fee amount should be reduced by 80% to account for the appellant’s limited success in her IRA appeal, the administrative judge concluded that the appellant only was succ essful as to one personnel action, her 2007 performance evaluation, noting that reinst atement of the appellant’s telework arrangement already had been accomplished, by resolution of a grievance, 2 years before the appellant filed her IRA appeal. AID at 10 & n.4. Subsequently, the Board found that the appellant established her IRA appeal claims as to both her 2007 performance evaluation and the cance llation of her tele work agreement, notwithstanding the rescission of that canc ellation by resolution of the grievance, and that she was entitled to co rrective action for both. Rumsey , 120 M.S.P.R. 259 , ¶ 49.18

Guy , the Board rejected the notion that, be cause the appellant prevailed on just one of five personnel acti ons (a counseling memorandum), she should be awarded
a similar fraction of the fees requested. Guy , 118 M.S.P.R. 45 , ¶ 22. The most significant measures of the appellant’s success were th at the Board made a public finding that the agency engaged in ille gal whistleblower re prisal and that it
referred the matter to OSC for invest igation and possible disciplinary action against the responsible agency officials. Id. The Board observe d in this regard that the award of attorney fe es serves the public interest, in that it may encourage employees and attorneys to pursue remedies for acts of whistleblowing reprisal, thereby discouraging agencies from engaging in such acts. Id. ¶29 The appellant disclosed her reasonable be lief that the agen cy failed in its obligation to ensure that re cipients of Federal aid us e grant money in accordance with the terms of their grants. The Bo ard has found that the agency failed to show by clear and convinci ng evidence that it did not take retaliatory actions against the appellant for her pr otected disclosures. An at torney fees award in this appeal serves the public in terest in that it may enc ourage employees and attorneys to pursue remedies for acts of whistl eblowing reprisal, thereby discouraging agencies from engaging in misconduct. Not only did the Board make a referral to the Special Counsel regarding its findings of reprisal in this case, both the Special Counsel and members of Congress have pursued investigations regarding the disclosures made by the appe llant and other whistleblowe rs at her agency. PFR File, Tab 3 at 35

‐ 61. Indeed, the appellant has submitted evidence that members of Congress have specifical ly recognized her efforts in bringing problems to their attention and helping provide the impetus for corrective legisl ative action. PFR File, Tab 14 at 5-7, 13-15, 28. Under all of the circumstances of this case, we find that an appropriate e quitable adjustment for the limited degree of the appellant’s success in this IRA appeal is a 60% reduction to the l odestar amount. ¶30 Applying this reduction to the lodestar for the DiMuroGinsburg law firm is straightforward and yields an award of attorney fees in the amount of $14,167.7819

($35,419.44 x .4). The award of attorn ey fees for Mr. Bu rka must be broken down into two parts: his work on the pe tition for review of the merits initial decision; and his work on th is addendum proceeding. It is appropriate to reduce the lodestar for the former, resulting in an award of $14,000.00 ($35,000 x .4). As discussed above, we also determined it was appropriate to reduce his award on the attorney fee proceeding. See Guy , 118 M.S.P.R. 45 , ¶ 23; Driscoll , 116 M.S.P.R. 662 , ¶ 30. The appellant therefore is entitled to an award of $76,097.00 for Mr. Burka’s servic es during the attorney fees proceeding. In total, the appellant is entitled to an award of attorney fees in the amount of $104,264.78 ($14,167.78 for the legal services of th e DiMuroGinsberg law firm + $14,000 for
the services of Mr. Burka during the merits pha se + $76,097.00 for the services of Mr. Burka during the attorn ey fee proceeding).
The appellant is entitled to a per centage of her incu rred costs. ¶31 The administrative judge found that th e appellant had di rectly incurred costs of $14,006.67 in the l itigation of her IRA appeal for deposition and hearing transcripts and photocopying. AID at 10. She reduced these costs by 80%, just
as she had for allowable atto rney fees, resulting in an award of $2,801 for costs. The appellant urges that the Board give he r a higher percentage of her costs, just as it did for attorney fees. PFR File, Tab 3 at 31; AFF, Tab 13 at 14

‐ 15. We have considered the appe llant’s arguments and are not persuaded that the administrative judge’s ruling re flects an erroneous finding of material fact or law. We therefore agree w ith the administrative judge that it is appropriate to award the appellant 20% of her costs, i.e., $2,801.34 ($14 ,006.67 x .2).

ORDER We FORWARD the appellant’s claim th at she is entitled to a greater performance appraisal and award to the Washington Re gional Office for adjudication as a petiti on for enforcement.20

We ORDER the agency to pay the appellant attorney fees totaling $104,264.78 and $2,801.34 in costs. The ag ency must complete this action no later than 20 days after the date of this decision. See generally title 5 of the United States Code, section 1204(a)(2) ( 5 U.S.C. § 1204 (a)(2)). We also ORDER the agency to tell the appellant a nd the attorney promptly in writing when it believes it has fully carried out the Board’ s Order and of the actions it took to carry out the Board’s Order. We ORDER the appellant and the attorney to provide all nece ssary information that the agency requests to help it carry out the Board’s Order. The appell ant and the attorney, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). No later than 30 days after the agency tells the appellant or the attorney that it has fully carried out the Board’s Order, the appellant or the attorney may file a petition for enforcement with the office that is sued the initial decision on this appeal, if the appellant or the attorney believes th at the agency did not fully carry out the Board’s Order. The petiti on should contain specif ic reasons why the appellant or the attorney be lieves the agency has not fu lly carried out the Board’s Order, and should include th e dates and results of a ny communications with the

agency. See 5 C.F.R. § 1201.182 (a).

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your request to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 The court must receive your request for review no la ter than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27,21

2012). If you choose to file, be very carefu l to file on time. The court has held that normally it does not have the author ity to waive this st atutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management , 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the Federal law that gives you th is right. It is found in title 5 of the U.S. Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of th e U.S. Code, at our website, http://www.mspb.gov/appeals/uscode.htm . Additional information is
available at the court’s website, www.cafc.uscourts.gov . Of particular relevance
is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is contained
within the court’s Rules of Practice , and Forms 5, 6, and 11. If you are interested in securing pro bo no representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before th e Federal Circuit. The Merit Systems Protection Board neither endorses the servic es provided by any attorney nor warrants that a ny attorney will accept repres entation in a given case.

FOR THE BOARD:

________________ ______________ Jennifer Everling Acting Clerk of the Board Washington, D.C.Rumsey v. Department of Justice 1 of 7 DC-1221-11-0466-A-1 Appendix A

Date Hours Requested Description of Tasks Page No. 1 Hours Awarded 1 10/28/2013 2 hrs. Combined Tasks 5 15 mins. 2 10/29/2013 2 hrs. Combined Tasks 5 1 hr. 3 10/30/2013 3 hrs. Combined Tasks 5 3 hrs.
4 10/31/2013 1 hr. 30 mins. Communication with Appellant 5 1 hr. 30 mins. 5 11/1/2013 18 mins. Comm unication with Others 2 5 0 6 11/2/2013 30 mins. Communication with Others 5 0 7 11/4/2013 2 hrs. Combined Tasks 5 1 hr. 8 11/6/2013 30 mins. Communication with Appellant 5 30 mins. 9 11/7/2013 1 hr. Research 5 1 hr. 10 11/15/2013 1 hr. Communication with Others 5 1 hr. 11 11/16/2013 2 hrs. Communi cation with Appellant 5 2 hrs.
12 11/17/2013 1 hr. 30 mins. Communication with Appellant 5 1 hr. 30 mins.
13 11/19/2013 2 hrs. 30 mins. Combined Tasks 5 0

14 11/20/2013 3 hrs. 30 mins. Combined Tasks 5 1 hr. 24 mins.
15 11/22/2013 1 hr. 30 mins. Research 6 0
16 11/23/2013 1 hr. Communication with Appellant 6 0 17 11/25/2013 30 mins. Communi cation with Appellant 6 0 18 11/27/2013 18 mins. Communication with Appellant 6 18 mins.
19 12/2/2013 1 hr. 12 mins. Combined Tasks 6 0
20 12/3/2013 30 mins. Communication with Appellant 6 15 mins.

1 Page numbers in this column follow the pa ges in the Petition for Review File, Tab 20, Exhibit A (Summary of Billable Hours).

2 Communication with others includes discussions between Mr. Burka and the administrative judge, other attorneys, an d the Government Acco untability Project.Rumsey v. Department of Justice 2 of 7 DC-1221-11-0466-A-1 Appendix A
Date Hours Requested Description of Tasks Page No. 1 Hours Awarded
21 12/4/2013 1 hr. 18 mins. Combined Tasks 6 30 mins.

22 12/5/2013 1 hr. 30 mins. Combined Tasks 6 0

23 12/6/2013 3 hrs. 30 mins. Combined Tasks 6 3 hrs. 30 mins. 24 12/9/2013 45 mins. Communication with Others 6 30 mins.
25 12/13/2013 1 hr. 30 mins. Combined Tasks 6 1 hr.
26 12/14/2013 12 mins. Communication with Appellant 6 12 mins. 27 12/15/2013 30 mins. Combined Tasks 6 30 mins. 28 12/16/2013 24 mins. Communication with Appellant 7 24 mins. 29 12/17/2013 24 mins. Communi cation with Appellant 7 24 mins. 30 12/18/2013 45 mins. Communication with Appellant 7 45 mins. 31 12/22/2013 30 mins. Comm unication with Others 7 30 mins. 32 12/23/2013 30 mins. Combined Tasks 7 30 mins. 33 12/24/2013 48 mins. Combined Tasks 7 36 mins. 34 12/26/2013 24 mins. Communication with Appellant 7 24 mins. 35 12/28/2013 30 mins. Communi cation with Appellant 7 30 mins. 36 12/30/2013 1 hr. Research 7 1 hr.
37 12/31/2013 2 hrs. 30 mins. Combined Tasks 7 2 hrs. 30 mins. 38 1/2/2014 1 hr. Combined Tasks 7 1 hr. 39 1/3/2014 42 mins. Combined Tasks 7 24 mins.
40 1/4/2014 5 hrs. 30 mins. Draft and Completion of Written Documents 7 5 hrs. 30 mins. 41 1/5/2014 7 hrs. Combined Tasks 8 7 hrs. 42 1/6/2014 24 mins. Combined Tasks 8 18 mins.
43 1/7/2014 1 hr. 30 mins. Combined Tasks 8 1 hr.

44 1/8/2014 2 hrs. 30 mins. Combined Tasks 8 2 hrs.

45 1/9/2014 3 hrs. Draft and Completion of Written Documents 8 3 hrs.
46 1/10/2014 30 mins. Combined Tasks 8 30 mins.Rumsey v. Department of Justice 3 of 7 DC-1221-11-0466-A-1 Appendix A
Date Hours Requested Description of Tasks Page No. 1 Hours Awarded 47 1/11/2014 30 mins. Communi cation with Appellant 8 30 mins. 48 1/12/2014 18 mins. Combined Tasks 8 12 mins. 49 1/14/2014 18 mins. Comm unication with Others 8 6 mins. 50 1/15/2014 24 mins. Communication with Appellant 8 12 mins. 51 1/16/2014 48 mins. Combined Tasks 8 0 52 1/17/2014 30 mins. Combined Tasks 8 15 mins. 53 1/20/2014 1 hr. Combined Tasks 8 0 54 1/21/2014 1 hr. Combined Tasks 9 15 mins. 55 2/9/2014 2 hrs. Re view of Decisions 9 2 hrs. 56 2/17/2014 30 mins. Combined Tasks 9 30 mins. 57 2/18/2014 12 mins. Combined Tasks 9 12 mins. 58 2/19/2014 1 hr. Combined Tasks 9 1 hr. 59 2/20/2014 1 hr. Combined Tasks 9 30 mins. 60 2/21/2014 45 mins. Communication with Others 9 0
61 2/22/2014 2 hrs. 30 mins. Draft and Completion of Written Documents 9 1 hr. 15 mins.
62 2/23/2014 2 hrs. 30 mins. Draft and Completion of Written Documents 9 2 hrs. 30 mins.
63 2/24/2014 1 hr. 30 mins. Draft and Completion of Written Documents 9 1 hr. 30 mins.
64 2/25/2014 2 hrs. 30 mins. Draft and Completion of Written Documents 9 2 hrs. 30 mins.
65 2/26/2014 2 hrs. 30 mins. Draft and Completion of Written Documents 10 2 hrs. 30 mins.
66 2/27/2014 4 hrs. 30 mins. Combined Tasks 10 3 hrs. 30 mins.
67 2/28/2014 1 hr. 30 mins. Combined Tasks 10 1 hr.

68 3/1/2014 4 hrs. Draft and Completion of Written Documents 10 4 hrs.

69 3/2/2014 1 hr. 30 mins. Draft and Completion of Written Documents 10 1 hr. 30 mins. 70 3/14/2014 18 mins. Communication with Appellant 10 18 mins. 71 3/20/2014 30 mins. Communi cation with Others 10 15 mins. 72 3/21/2014 36 mins. Combined Tasks 10 24 mins.Rumsey v. Department of Justice 4 of 7 DC-1221-11-0466-A-1 Appendix A
Date Hours Requested Description of Tasks Page No. 1 Hours Awarded 73 3/22/2014 30 mins. Combined Tasks 10 30 mins.
74 3/31/2014 1 hr. 30 mins. Combined Tasks 10 1 hr. 30 mins. 75 4/3/2014 24 mins. Combined Tasks 10 24 mins.
76 4/4/2014 1 hr. 30 mins. Combined Tasks 10 1 hr.
77 4/6/2014 12 mins. Communi cation with Appellant 10 12 mins. 78 4/7/2014 30 mins. Communication with Appellant 11 20 mins. 79 4/15/2014 18 mins. Combined Tasks 11 18 mins. 80 4/17/2014 12 mins. Combined Tasks 11 12 mins. 81 10/3/2014 1 hr. Co mbined Tasks 11 1 hr. 82 10/6/2014 3 hrs. Research 11 3 hrs. 83 10/7/2014 6 hrs. Communi cation with Appellant 11 6 hrs. 84 10/8/2014 30 mins. Communication with Appellant 11 30 mins. 85 10/9/2014 30 mins. Combined Tasks 11 30 mins.
86 10/10/2014 1 hr. 30 mins. Combined Tasks 11 0
87 10/12/2014 1 hr. Combined Tasks 11 1 hr.

88 10/14/2014 1 hr. 30 mins. Combined Tasks 3 11 1 hr.

89 10/16/2014 1 hr. 30 mins. Draft and Completion of Written Documents 11 1 hr.

90 10/29/2014 4 hrs. Research 11 2 hrs. 40 mins.
91 10/30/2014 1 hr. 30 mins. Research 11 1 hr.

92 11/1/2014 2 hrs. 30 mins. Research 11 1 hr. 40 mins.
93 11/2/2014 2 hrs. Draft and Completion of Written Documents 12 1 hr. 20 mins.

3 Italicized items 88-119 are subject to an additional 11% reduction of Hours Awarded. See Final Order at 15-16.Rumsey v. Department of Justice 5 of 7 DC-1221-11-0466-A-1 Appendix A
Date Hours Requested Description of Tasks Page No. 1 Hours Awarded
94 11/3/2014 3 hrs. Draft and Completion of Written Documents 12 2 hrs.

95 11/4/2014 2 hrs. 30 mins. Draft and Completion of Written Documents 12 1 hr. 40 mins.
96 11/5/2014 3 hrs. Draft and Completion of Written Documents 12 2 hrs.

97 11/6/2014 5 hrs. Draft and Completion of Written Documents 12 3 hrs. 20 mins.
98 11/9/2014 3 hrs. Draft and Completion of Written Documents 12 2 hrs.

99 11/12/2014 2 hrs. Draft and Completion of Written Documents 12 1 hr. 20 mins.
100 11/13/2014 3 hrs. Draft and Completion of Written Documents 12 2 hrs.

101 11/14/2014 4 hrs. Draft and Completion of Written Documents 12 2 hrs. 40 mins.
102 11/30/2014 3 hrs. 30 mins. Draft and Completion of Written Documents 12 2 hrs. 20 mins.
103 12/1/2014 7 hrs. Draft and Completion of Written Documents 12 4 hrs. 40 mins. 104 12/2/2014 1 hr. Research 12 40 mins.
105 12/3/2014 3 hrs. 30 mins. Draft and Completion of Written Documents 12 2 hrs. 20 mins.
106 12/4/2014 1 hr. 30 mins. Combined Tasks 12 1 hr.

107 12/5/2014 7 hrs. Draft and Completion of Written Documents 12 4 hrs. 40 mins.
108 12/6/2014 5 hrs. Draft and Completion of Written Documents 12 3 hrs. 20 mins.
109 12/7/2014 4 hrs. Draft and Completion of Written Documents 12 2 hrs. 40 mins. 110 1/5/2015 1 hr. Combined Tasks 12 40 mins. 111 1/6/2015 30 mins . Communication with Appellant 12 20 mins.
112 1/7/2015 3 hrs. 30 mins. Combined Tasks 12 2 hrs. 20 mins.
113 1/8/2015 4 hrs. Combined Tasks 12 2 hrs. 40 mins.
114 1/9/2015 5 hrs. Combined Tasks 13 3 hrs. 20 mins.Rumsey v. Department of Justice 6 of 7 DC-1221-11-0466-A-1 Appendix A
Date Hours Requested Description of Tasks Page No. 1 Hours Awarded
115 1/10/2015 6 hrs. Draft and Completion of Written Documents 13 4 hrs.

116 1/11/2015 2 hrs. 30 mins. Combined Tasks 13 1 hr. 40 mins.
117 1/12/2015 5 hrs. Combined Tasks 13 3 hrs. 20 mins.
118 1/13/2015 7 hrs. Draft and Completion of Written Documents 13 4 hrs. 40 mins.
119 1/14/2015 ~2 hrs. Combined Tasks 13 1 hr. 20 mins.
120 7/29/2015 2 hrs. Draft and Completion of Written Documents 13 2 hrs.
121 7/30/2015 30 mins. Combined Tasks 13 30 mins.
122 8/22/2015 2 hrs. Draft and Completion of Written Documents 13 2 hrs.

. 123 8/25/2015 30 mins. Combined Tasks 13 30 mins. *124 8/26/2015 3 hrs. Combined Tasks 13 3 hrs.
*125 8/27/2015 1 hr. 30 mins. Combined Tasks 13 1 hr. 30 mins.
*126 8/28/2015 1 hr. 30 mins. Combined Tasks 13 1 hr. 30 mins.
*127 8/29/2015 1 hr. 30 mins. Combined Tasks 13 1 hr. 30 mins. *128 8/30/2015 6 hrs. Combined Tasks 13 6 hrs. *129 8/31/2015 30 mins. Communi cation with Appellant 14 30 mins.
*130 9/4/2015 1 hr. 30 mins. Combined Tasks 14 1 hr. 30 mins.
*131 9/5/2015 1 hr. 30 mins. Combined Tasks 14 1 hr. 30 mins. *132 9/8/2015 27 mins. Combined Tasks 14 27 mins.
*133 9/10/2015 1 hr. 24 mins. Combined Tasks 14 1 hr. 24 mins.

* Items 124-46 with asterisks represent time Mr. Burka sp ent during the post-Briefing Order period. See Final Order at 12

‐ 13.Rumsey v. Department of Justice 7 of 7 DC-1221-11-0466-A-1 Appendix A
Date Hours Requested Description of Tasks Page No. 1 Hours Awarded
*134 9/11/2015 1 hr. 30 mins. Combined Tasks 14 1 hr. 30 mins.
*135 9/12/2015 3 hrs. 30 mins. Combined Tasks 14 3 hrs. 30 mins.
*136 9/13/2015 1 hr. 30 mins. Combined Tasks 14 1 hr. 30 mins. *137 9/14/2015 2 hrs. Combined Tasks 14 2 hrs.
*138 9/15/2015 2 hrs. 30 mins. Combined Tasks 14 2 hrs. 30 mins.
*139 9/16/2015 5 hrs. Draft and Completion of Written Documents 14 5 hrs.

*140 9/17/2015 6 hrs. 30 mins. Draft and Completion of Written Documents 14 6 hrs. 30 mins. *141 9/18/2015 5 hrs. Combined Tasks 14 5 hrs. *142 9/19/2015 3 hrs. Combined Tasks 14 3 hrs. *143 9/20/2015 18 mins. Combined Tasks 14 18 mins. *144 9/21/2015 30 mins. Combined Tasks 14 30 mins.
*145 9/22/2015 3 hrs. 30 mins. Combined Tasks 14 3 hrs. 30 mins.
*146 9/24/2015 2 hrs. 30 mins. Combined Tasks 15 2 hrs. 30 mins.

Block A: Hours and

Amount Requested Total Hours and Fees Requested: 289.3 hrs. or 289 hrs. 18 mins. Total Amount Requested: 289.3 hr s. x $495/hr. = $143,203.50

Block B: Hours and

Amount Awarded Total Hours and Fees Awarded: 225. 3 hrs. or 225 hr s. 18 mins.
11% Reduction of Hours Awarded for Work on PFR and Reply: 71.67 x 89% = 63.79 hrs. or 63 hrs. 47 mins. Total Hours and Fees Aw arded after Reduction: (225.3

‐ 71.67) + 63.79 = 217.42 hrs. or 217 hrs. 25 mins.
Total Amount Awarded: 217.42 hr s. x $350/hr. = $76,097.00Rumsey v. Departmentof Justice 1 of 4DC-1221-11-0466-A-1Appendix BAttorneys’Fees FilesPleadingNo.Document NameTabDate PagesComments1stMotion forAttorneys’ Fees112/17/131.5Motion for Extension of Time2ndMotion forAttorneys’ Fees3 01/08/13 17.3 Appellant’s Initial Motion for Attorneys’ Fees3rdDeclaration ofRobert Burka401/10/146.5Exhibit A: Summary of Billing for Burka (all newmaterial, except¶ 5 has the samesubstantiveinformation as ¶¶ 14‐15 in Appellant’s Declarationon page 6)4thDeclaration ofJonathan Mook5 01/10/14 17.5Exhibits A-D: DiMuroGinsbergExhibit A: Letter ofLegal Service Agreementfrom DiMuroGinsberg toAppellant (2 pp.)Exhibit B: invoice dated 7/21/11 (5 pp.)Exhibit C: invoice dated 9/21/11 (4 pp.)Exhibit D: invoice dated 12/12/11 (3 pp.)5thDeclarationof Appellant601/12/14~120Exhibits A-W: billing for all three attorneysprimarily, of Beth Slavet and briefly, ofDiMuroGinsberg and Burka (Burka mentioned2 paragraphs about fee structure in his previousDeclaration (AFF, Tab 4)).Exhibit A: Performance Award Plan (5 pp.)Exhibit B: Legal Representation Agreementbetween Slavet andAppellant (3 pp.)Rumsey v. Departmentof Justice 2 of 4DC-1221-11-0466-A-1Appendix BAttorneys’Fees FilesPleadingNo.Document NameTabDate PagesComments5th(cont’d)Declarationof AppellantExhibit C:invoice dated 4/22/09 (2 pp.)Exhibit D: invoice dated 2/13/09 (3 pp.)Exhibit E: invoice dated 6/23/09 (2 pp.)Exhibit F: invoice dated 7/9/09 (2 pp.)Exhibit G: invoice dated 9/29/09 (2 pp.)Exhibit H: invoice dated 1/26/09 (2 pp.)Exhibit I: invoice dated 2/3/10 (2 pp.)Exhibit J: invoice dated 2/3/10 (2 pp.)Exhibit K: invoice dated 4/23/10 (3 pp.)Exhibit L: invoice dated 6/9/10 (3 pp.)Exhibit M: invoice dated 8/9/10 (2 pp.)Exhibit N: invoice dated 8/13/10 (2 pp.)Exhibit O: invoice dated 11/19/10 (2 pp.)Exhibit P: invoice dated 1/10/11 (2 pp.)Exhibit Q: invoice dated 2/16/11 (2 pp.)Exhibit R: invoice dated 9/27/11 (2 pp.)Exhibit S: invoice dated 9/27/11 (2 pp.)Exhibit T: invoice dated 9/27/11 (4 pp.)Exhibit U: invoice dated 10/10/11 (9 pp.)Exhibit V: invoice dated 10/20/11 (17 pp.)Exhibit W: invoice dated 6/30/11 (12 pp.)Rumsey v. Departmentof Justice 3 of 4DC-1221-11-0466-A-1Appendix BAttorneys’Fees FilesPleadingNo.Document NameTabDate PagesComments6thSupplement toMotion forAttorneys’ Fees7 01/22/14 ~119Exhibits A‐B, D-E: Summary ofBilling, primarily,of Slavet and DiMuroGinsberg (Exhibit Cis missing)Exhibit A: Legal Representation Agreement(3 pp.)Exhibit B: invoices dated 4/22/09; 6/23/09;7/9/09; 9/29/09; 12/10/09; 1/26/10; 2/3/10;3/8/10; 4/23/10; 5/20/10; 6/9/10; 8/13/10;11/18/10; 1/8/11; 1/10/11; 2/16/11; 6/29/11;9/27/11 (three qty.); 10/10/11; 10/20/11 (87 pp.)Exhibit D: email fromAppellant to Slavetregarding “To-Do List” (3 pp.)Exhibit E: email from Slavet to Rolest Shaub(2 pp.); letter fromSlavet re: “EthicsUndertaking” (3 pp.); letterfrom Robert Sadler toAJ Clement (2 pp.)7thSupplement toMotion forAttorneys’ Fees1102/05/14~114Exhibits A-E: (Tab 11 is a duplicate of Tab 7, butadds Exhibit C).Exhibit C: Statementof Escrow Account(10/22/12) (3 pp.)Rumsey v. Departmentof Justice 4 of 4DC-1221-11-0466-A-1Appendix BAttorneys’Fees FilesPleadingNo.Document NameTabDate PagesComments8thRefiling of LegibleCopy ofSupplement, Tab 1112 02/25/14 ~114Exhibits A-E: (Tab 12 is a duplicate of Tab 11, butadds an email in ExhibitB) (email from Crowley,Hoge & Fein, P.C. toBurka (1 pg.)).9thReply toAgency’s Response1303/02/1422Supplemental Declaration of Burka (2 pp.)Summary of Billing (8.5pp.) (1.5 new pagesdiffering from Summary atTab 4; ¶ 2 is the sameas ¶ 7 bullet 2 in Burka’s first declaration)Rumsey v. Departmentof Justice 1 of 2DC-1221-11-0466-A-1Appendix CPetition for Review FilePleadingNo.Document NameTabDate PagesComments1stRequest forExtension of Timeto File Petition forReview (PFR)110/13/142Declaration of Burka (2.5 pp.) (this pleadingcontains all newmaterial, except for ¶ 1, which isthe same as ¶ 1 in Attorneys’ Fees File (AFF),Tab 4)2ndPetition for Review 3 12/08/14 23Appendices A-F (33 pp.)Appendix A: email fromBurka to AJ Clementdated 4/17/14 (1 pg.)Appendix B: letter from Hon. Carolyn Lernerto Hon. Eric Holderdated 9/16/14 (12 pp.)Appendix C: letter from Hon. Charles Grassleyto Hon. Robert Listenbee dated 9/5/14 (3 pp.)Appendix D: letter fromHon. Peter Kadrik toHon. Charles Grassley dated 10/28/14 (7 pp.)Appendix E: email fromHon. Robert Listenbeeto DOJ’s Office ofJuvenile Justice and Delinquency Preventiondated 10/30/14 (2 pp.)Appendix F: Declaration of Burka dated12/8/14 (16 pp.)Summary of Billing (11 pp.) (2.5 new pages thatdiffer from Summary atAFF, Tab 13, except for¶ 1, which is the same as¶ 1 in AFF, Tab 4, andPFR File, Tab 1)Rumsey v. Departmentof Justice 2 of 2DC-1221-11-0466-A-1Appendix CPetition for Review FilePleadingNo.Document NameTabDate PagesComments3rdReply to Agency’sResponse to PFR801/14/1512.251st of 3 Supplemental Declarations of Burka(3.5 pp.)Exhibit: Summary of Billing (11.5 pp.)(50% new material, 50%copied from previousdeclarations; 1 new page differing fromprevious Summary)4thMotion for Leave toFile SupplementalPleading10 07/30/15 2Stated purpose: to bringallegedly new evidencenot available when record closed5thSupplementalPleading to SubmitNew Evidence1408/25/155.52nd of 3 Supplemental Declarations of Burka(1.5 pp.) (all new material)6thResponse to MSPB’sBriefing Order18 09/08/15 3Attorney/Client Arbitration Board (ACAB)Submission on Fee ArbitrationExhibit A: ACAB Consent Decision (3 pp.)Exhibit B: Order Granting Respondent’s Motion toStay (3 pp.)Exhibit C: ACAB letter dated 11/14/14 (4 pp.)7thSecond Response toBriefing Order2009/25/15173rd of 3 Supplemental Declarations of Burka (4 pp.)Appendix: Summary of Billing (12 pp.) (50% newmaterial, 50% copied; 2 new pages differing fromprevious Summary)