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, Washington, D.C., for the appellant. 

Kristen Bucher Hahn, Esquire, and Morton J. Posner, Esquire, 

Washington, D.C., for the agency. 

Thomas Devine, Esquire, Washington, D.C., for 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 fees to one of her three 

attorneys but denied any attorney fees for the services of her two other attorneys. 

For the reasons discussed below, we GRANT the petition for review, VACATE 

the addendum initial decision 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 services of the DiMuroGinsberg law firm, 
2

AFFIRM the addendum initial decision insofar 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 addendum initial decision concerning the 

amount of attorney fees and costs awardable to the appellant. We FORWARD to 

the Washington Regional Office the appellant’s allegation that she is entitled to a 

higher performance appraisal and award for adjudication as a petition 

for enforcement. 

BACKGROUND 

¶2 The appellant is a GS-14 Compliance Monitoring Coordinator in the Office 

of Juvenile Justice and Delinquency Prevention (OJJDP). Rumsey v. Department 

of Justice, 120 M.S.P.R. 259, ¶ 2 (2013). One of the functions of OJJDP is to 

award grants to organizations and then ensure that they use the grant money in 

compliance with the terms of the grant. Id. The appellant disclosed, inter alia, 

her belief that one of the grantees submitted fraudulent data in connection with its 

program compliance and that agency managers were covering up this fraud. Id., 

¶¶ 17-19. Thereafter, the appellant filed an individual right of action (IRA) 

appeal in which she alleged that the agency reprised against her in a variety of 

ways, including, inter alia, giving her improperly low performance ratings, 

conducting a reorganization that moved many of her job duties to other 

employees, cancelling her telework agreement, 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 appellant filed a petition 

for review, the Board determined that, while a “close case,” the limited evidence 

in the record was insufficient to find that the agency met “its burden of proving 

by clear and convincing evidence that it would have given the appellant the same 

rating absent any whistleblowing.” Id., ¶¶ 35-38. The Board also found that, 

although the agency presented evidence in support of its position, the Board was 
3

“not left with the firm belief that the agency would have cancelled the appellant’s 

telework agreement” absent her protected activity.1

 Id., ¶ 34. The Board ordered 

the agency to take corrective action regarding the cancellation of the appellant’s 

telework agreement with the agency and her 2007 performance rating. Id., ¶ 49. 

¶3 The appellant subsequently filed a motion for attorney fees in which she 

sought fees for all three of the attorneys who had represented her: Beth Slavet, 

who represented the appellant before the Office of Special Counsel (OSC), as 

well as through the hearing in the IRA appeal; the DiMuroGinsberg law firm, 

which represented the appellant from June through July 2011, including at the 

hearing; and Robert Burka, who represented the appellant on petition for review 

to the Board and in this attorney fee (addendum) proceeding. Attorney Fee File 

(AFF), Tab 1. In her addendum initial decision, the administrative judge granted 

attorney fees of $7,084, which was limited to the representation by the 

DiMuroGinsburg law firm, plus costs of $2,801. AFF, Tab 16, Addendum Initial 

Decision (AID). The administrative judge found that no award of attorney fees 

should be made for the legal services of either Ms. Slavet or Mr. Burka. AID 

at 5‐9. The administrative judge further found that the lodestar amount (hourly 

rate multiplied by the number of reasonable hours) for the DiMuroGinsburg law 

firm, as well as awardable costs, must be reduced by 80% because of the 

appellant’s limited degree of success in her IRA appeal. AID at 9‐11. 

¶4 In a timely filed petition for review, the appellant argues, among other 

things, that she is entitled to an award of attorney fees for the work performed by 

all three of her lawyers and 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 award of attorney fees for Ms. Slavet’s 

legal services. 

¶5 Before addressing whether the two other attorneys who represented the 

appellant should be entitled to an award of attorney fees, we are presented with 

the threshold issue of whether attorney fees should be awarded to Ms. Slavet. As 

mentioned above, the administrative 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. Slavet and did not vouch for the reasonableness of the 

itemized charges listed on the invoices. AFF, Tab 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 invoices were “full of meritless, 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 decision would have a 

chilling effect on the exercise of rights under the Whistleblower Protection 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 motion for leave to file a supplemental 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 issued a Briefing Order requesting additional 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 basis to conclude that any 

amount of fees claimed were reasonable. Because the appellant has not met her 

burden of proving by preponderant 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 later became a Federal employee. We now will address the 

appellant’s other attorneys. 

Because the controlling legal authority for this proceeding is 5 U.S.C. 

§ 1221(g)(1)(B), it is the appellant, and not her attorney, who is entitled to an 

award of attorney fees. 

¶7 It is well settled that attorney fees cannot be awarded against the Federal 

Government unless specifically authorized by a statutory waiver of sovereign 

immunity. Brenner v. Department 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 corrective action in 

the merits proceeding based on its finding of a prohibited personnel practice. 

¶8 In analyzing the motion for attorney fees and costs in this appeal, the 

administrative judge cited both 5 U.S.C. §§ 7701(g) and 1221(g). AID at 1. The 

analysis of an attorney fee motion under 5 U.S.C. § 7701(g)(1) and 5 U.S.C. 

§ 1221(g) is similar in several respects. Both require, for example, that the 

movant have been a prevailing party, which is not disputed in this case. There 

are at least two significant differences, however. First, an award of attorney fees 

under 5 U.S.C. § 7701(g)(1) must be “warranted in the interest of justice.” No 
6

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 party or the attorney who is entitled to 

receive attorney fees. The text of 5 U.S.C. § 7701(g)(1) does not address this 

issue directly; it merely states that the Board “may require payment by an agency 

involved of reasonable attorney 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 fees 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, section 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 attorney fees for the legal services of the 

DiMuroGinsberg law firm and for Mr. Burka’s legal services. 

¶9 Neither party has objected to the administrative 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 committed 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 that 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 administrative judge’s 

finding and see no reason to disturb it. However, the administrative judge found 

that an award of attorney fees for Mr. Burka’s legal services was not warranted. 

AID at 5-7. As discussed below, we disagree with the administrative 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 appellant 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 appellant’s behalf were successful, he would 

apply for an award of attorney fees; (3) he would give the appellant any fees he 

was awarded up to the amount she already had paid to the other attorneys; (4) the 

same understanding applied to any services Mr. Burka might provide in 

connection with any addendum proceeding after the Board ruled on the petition 

for review; and (5) if any funds for Mr. Burka’s services were left over, they 

would be donated to charity after consultation with the appellant. AFF, Tab 4 

at 6; Tab 6 at 9-10. Mr. Burka agreed to these arrangements “to ameliorate [the 

appellant’s] undoubtedly difficult financial situation caused by paying various 

counsel and litigation support vendors approximately $140,000.” AFF, Tab 4 

at 6. Both the appellant and Mr. Burka 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 rate ($0 in this case) is presumed to be reasonable, and that 

this presumption can be rebutted only by convincing evidence that the 

agreed‐upon rate was not based on marketplace considerations and that the 

attorney’s rate for similar work was customarily higher, or by showing that the 
8

attorney agreed to such a rate only because of the employee’s reduced ability to 

pay. AID at 5-6. The administrative judge found that the presumption was not 

rebutted because Mr. Burka agreed not to charge 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 fee arrangement in question was essentially for a 

100% contingency fee, i.e., no fee unless the appellant became a prevailing party, 

in which event Mr. Burka would seek an award of attorney fees at market rates. 

Because liability for attorney fees and costs under 5 U.S.C. § 1221(g)(1)(B) is to 

the appellant and not to the attorney, it is irrelevant that the attorney elected not 

to retain any of the fees awarded. The record also shows that Mr. Burka, who 

retired in 2010 after practicing law for nearly 40 years, albeit in a different area 

of legal expertise, routinely billed for the provision of legal services at a rate of 

$850 per hour. AFF, Tab 4 at 4. Thus, his 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 appellant’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 for 
9

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 reasonable attorney fee award in a case 

where the prevailing party did not obtain all the relief requested is to take the 

hours reasonably spent on the litigation multiplied 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 calculation should exclude hours for 

which the prevailing party failed to provide adequate documentation, as well as 

hours that were not reasonably expended. Hensley, 461 U.S. at 433-34; Guy, 

118 M.S.P.R. 45, ¶ 8. 

¶15 Neither party has objected to the lodestar determined by the administrative 

judge for the DiMuroGinsburg law firm, $35,419.44, representing 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 for Mr. Burka. 

¶16 The burden of establishing the reasonableness 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 usually finds an attorney’s 

customary billing rate to be his “reasonable” rate. Id., ¶ 9. The customary billing 

rate may be established by showing the hourly rate at which the attorney actually 

 

5

 See Astrue v. Ratliff, 560 U.S. 586, 589, 597-98 (2010) (awarding attorney fees under 

Equal Access to Justice Act where the fee award 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 charity, or even to their 

employers, just as they may spend their 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 similar work in the community. 

Id. The relevant market rate for the determination of the reasonableness of an 

attorney fee request is the forum for the litigation, which in this case is the 

Washington, D.C. metropolitan area. 

¶17 Mr. Burka stated that he has been engaged in the practice of law since 1971 

in both the private sector and in Federal 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 rate6

 was $495 per hour in 

2011-2012, which he indicated would compare favorably to the rates he routinely 

charged commercial clients. Id. Mr. Burka acknowledged that this is the first 

case he has ever litigated before the Board, although he has litigated 

administrative appeals in other forums, as well as in the U.S. Supreme Court and 

several Federal courts 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 purporting to reflect 

the “true value” of the attorney’s services, is the appropriate 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 calculating fees for private attorneys who represent 

individuals “at reduced rates reflecting non-economic goals”). It purports to show the 

prevailing market rates for attorneys in the District of Columbia and is prepared and 

maintained by the United States Attorney’s Office 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 before the Board. As noted above, though, Mr. Burka has 

billed clients at the rate of $850 per hour, and he has extensive experience in 

complex legal matters. However, because 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 circumstances 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, $350 per hour, the rate 

charged by one of the appellant’s other experienced legal counsel, the 

DiMuroGinsburg law firm (also practicing in the Washington, 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 entitled 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 relevant factors to take into account when making 

a lodestar calculation; the superior performance of an attorney is considered only 

in “rare” and “exceptional” circumstances). 

¶19 Having determined that $350 is a reasonable hourly rate for Mr. Burka, we 

next turn to the number of hours he reasonably expended on this litigation. There 

are two distinct periods of legal representation involved here: preparing the 

petition for review of the merits decision; and prosecuting the present motion for 

attorney fees, including pleadings on review. As to the former period, Mr. Burka 

stated that he spent 152.65 hours preparing the petition for review, but he 
12

proposed that, in light of his unfamiliarity 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. Accordingly, the lodestar figure for 

Mr. Burka’s preparation of the petition for review in the merits proceeding is 

$35,000 (100 hours x $350/hour). 

¶20 As to the latter period, it is well settled that an attorney’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 petition 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, including responding to the Board’s Briefing Order. AFF, 

Tab 13 at 26-27; PFR File, Tab 3 at 25, 64, Tab 8 at 14, 20, Tab 20 at 22. 

¶21 After closely scrutinizing the submitted evidence of the hours spent and the 

work product produced (totaling 16 pleadings)7

 by Mr. Burka during this 

addendum proceeding, we divided our inquiry into an additional two periods: 

 

7

 Those pleadings consist of the following: AFF, Tabs 1 (motion for extension of time); 

3 (motion for attorney fees); 4-6 (declarations 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 response 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 Opinion and Order (listing in detail all 

the pleadings filed by Mr. Burka during the addendum proceeding, 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 time thereafter. We conclude, 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 attorney fees petition, we created a 

seven‐page table that reflects Mr. Burka’s requested hours during the addendum 

proceeding, providing a description of categories of work he performed, 

including: his communications with the appellant; his communications with 

others (usually, the administrative judge, other attorneys, and/or the Government 

Accountability Project); his general research; and his drafting and completion of 

written products (pleadings). See Appendix A (attached to this Opinion and 

Order). In reviewing Mr. Burka’s final “Summary of Billable Hours,” PFR, 

Tab 20, Exhibit A, we also noticed instances wherein he reported working on 

several tasks simultaneously, which is labeled 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 requested 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 discussed below. 

¶23 We find, for instance, that during the pre-Briefing Order period, Mr. Burka 

should not be entitled to fees 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 proceeding in their efforts to obtain fees for Ms. Slavet, 

given that we have found above that she is not entitled to any fees. We have 

made an exception to this determination, however, for any such work Mr. Burka 

performed during the post-Briefing Order 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, dated from August 26 
14

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 (or received from), the Government 

Accountability Project. While the public-interest organization may have been 

advocating here for whistleblowers at large, it did not show that it had contracted 

with the appellant to represent her individually 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 entitled 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 proceeding 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 these hours, we realize that we sometimes 

gave Mr. Burka the benefit of the doubt because we only deducted hours if he 

explicitly mentioned in his 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 nonprecedential 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 reduction must be made 

for certain hours not reasonably attributable 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 second highest rating. AFF, Tab 3 at 9-10; Tab 13 

at 9-10. In her addendum initial decision, the administrative judge correctly ruled 

that a motion for attorney fees is not the proper vehicle for raising such a dispute, 

which should be raised in a petition 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 attorney time spent on this issue should not 

be compensable in this proceeding. As the present record does not detail the 

specific number of hours spent by Mr. Burka on this issue, we find that an 

efficient way to estimate the number of hours devoted to this minor issue is to use 

the percentage of pages devoted on review to argument on this issue. By our 

calculation, Mr. Burka devoted approximately 11% of his argument in the petition 

for review and reply (4 pages out of 36) to this issue. Accordingly, we reduce the 

number of hours for preparation of those 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 evidence and argument on the merits. PFR 

File, Tab 3 at 29-30. We decline 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 two 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. Second, 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 proceeding on attorney fees. Should the 

appellant prevail in a compliance proceeding as to her view of the proper performance 
16

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 timeframe). 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 lodestar 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 proceeding 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 equal $76,097.00 in attorney fees for that period). 

The administrative judge correctly reduced the lodestar attorney fees to account 

for the appellant’s minimal success in this litigation. 

¶26 When, as here, a prevailing party makes more than one claim for relief, and 

the claims involve a common core of facts or are based on related 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 success,” the tribunal awarding 

fees has discretion to make an equitable 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 “partial or limited” in this case is not in dispute; she 

claimed that she was subjected to many more retaliatory 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 termination of a telework agreement, already 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 years before the appellant filed this IRA appeal. Rumsey, 

120 M.S.P.R. 259, ¶¶ 3, 49. 

¶27 In doing an equitable adjustment of attorney fees on account of a prevailing 

party’s partial or limited success, the tribunal may adjust the lodestar downward 

by identifying specific hours that should be eliminated or, in the alternative, 

reducing the overall award to account for 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 practicable to segregate the hours devoted to any related but 

unsuccessful claims, and only when the administrative judge is unable to do so 

should she impose a percentage 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 determined that it was not practicable to 

segregate the hours devoted to related but unsuccessful claims. AID at 9-10. 

Because neither party has questioned that determination on review, it is 

appropriate to adjust the overall award to account for the appellant’s 

limited success. 

¶28 That the Board found that “only” two of the disputed personnel actions 

were retaliation for protected whistleblowing does not control how much the 

lodestar should be reduced to account for the appellant’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 successful as to one personnel action, her 2007 

performance evaluation, noting that reinstatement 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 cancellation of her telework agreement, 

notwithstanding the rescission of that cancellation by resolution of the grievance, and 

that she was entitled to corrective action for both. Rumsey, 120 M.S.P.R. 259, ¶ 49. 
18

Guy, the Board rejected the notion that, because the appellant prevailed on just 

one of five personnel actions (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 that the Board made a public 

finding that the agency engaged in illegal whistleblower reprisal and that it 

referred the matter to OSC for investigation and possible disciplinary action 

against the responsible agency officials. Id. The Board observed in this regard 

that the award of attorney fees 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 belief that the agency failed in its 

obligation to ensure that recipients of Federal aid use grant money in accordance 

with the terms of their grants. The Board has found that the agency failed to 

show by clear and convincing evidence that it did not take retaliatory actions 

against the appellant for her protected disclosures. An attorney fees award in this 

appeal 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 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 appellant and other whistleblowers at her agency. PFR 

File, Tab 3 at 35‐61. Indeed, the appellant has submitted evidence that members 

of Congress have specifically recognized her efforts in bringing problems to their 

attention and helping provide the impetus for corrective legislative action. PFR 

File, Tab 14 at 5-7, 13-15, 28. Under all of the circumstances of this case, we 

find that an appropriate equitable adjustment for the limited degree of the 

appellant’s success in this IRA appeal is a 60% reduction to the lodestar 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 $14,167.78 
19

($35,419.44 x .4). The award of attorney fees for Mr. Burka must be broken 

down into two parts: his work on the petition for review of the merits initial 

decision; and his work on this 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 services 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 the DiMuroGinsberg law firm + $14,000 for 

the services of Mr. Burka during the merits phase + $76,097.00 for the services of 

Mr. Burka during the attorney fee proceeding). 

The appellant is entitled to a percentage of her incurred costs. 

¶31 The administrative judge found that the appellant had directly incurred 

costs of $14,006.67 in the litigation 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 attorney fees, resulting in an award of $2,801 for costs. 

The appellant urges that the Board give her 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 appellant’s arguments and are not persuaded that the 

administrative judge’s ruling reflects an erroneous finding of material fact or law. 

We therefore agree with 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 that she is entitled to a greater 

performance appraisal and award to the Washington Regional Office for 

adjudication as a petition for enforcement. 
20

We ORDER the agency to pay the appellant attorney fees totaling 

$104,264.78 and $2,801.34 in costs. The agency 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 and 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 necessary information that the agency requests to help it 

carry out the Board’s Order. The appellant 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 issued the initial decision on 

this appeal, if the appellant or the attorney believes that the agency did not fully 

carry out the Board’s Order. The petition should contain specific reasons why the 

appellant or the attorney believes the agency has not fully carried out the Board’s 

Order, and should include the dates and results of any 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 later 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 careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory 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 this 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 the 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 Petitioners 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 bono 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 the Federal Circuit. The 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation 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. Communication with Others2 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. Communication 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. Communication 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 pages 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, and the Government Accountability 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. Communication with Appellant 7 24 mins. 

30 12/18/2013 45 mins. Communication with Appellant 7 45 mins. 

31 12/22/2013 30 mins. Communication 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. Communication 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. Communication with Appellant 8 30 mins. 

48 1/12/2014 18 mins. Combined Tasks 8 12 mins. 

49 1/14/2014 18 mins. Communication 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. Review 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. Communication 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. Communication 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. Combined Tasks 11 1 hr. 

82 10/6/2014 3 hrs. Research 11 3 hrs. 

83 10/7/2014 6 hrs. Communication 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 Tasks3 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. Communication 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 spent 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 hrs. x $495/hr. = $143,203.50 

Block B: 

Hours and 

Amount 

Awarded

Total Hours and Fees Awarded: 225.3 hrs. or 225 hrs. 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 Awarded after Reduction: 

(225.3 ‐ 71.67) + 63.79 = 217.42 hrs. or 217 hrs. 25 mins. 

Total Amount Awarded: 217.42 hrs. x $350/hr. = $76,097.00 
 Rumsey v. Department of Justice 

DC-1221-11-0466-A-1 

Appendix B 

Attorneys’ Fees Files 

Pleading 

No. Document Name Tab Date Pages Comments

1st Motion for Attorneys’ Fees 1 12/17/13 1.5 Motion for Extension of Time 

2nd Motion for Attorneys’ Fees 3 01/08/13 17.3 Appellant’s Initial Motion for Atto

3rd Declaration of Robert Burka 4 01/10/14 6.5 

Exhibit A: Summary of Billing fo

material, except ¶ 5 has the same information as ¶¶ 14‐15 in Appelon page 6) 

4th Declaration of 

Jonathan Mook 5 01/10/14 17.5 

Exhibits A-D: DiMuroGinsberg 

Exhibit A: Letter of Legal Servic

from DiMuroGinsberg to Appell

Exhibit B: invoice dated 7/21/11 Exhibit C: invoice dated 9/21/11 Exhibit D: invoice dated 12/12/1

5th Declaration 

of Appellant 6 01/12/14 ~120 

Exhibits A-W: billing for all three 

primarily, of Beth Slavet and brieDiMuroGinsberg and Burka (Bur2 paragraphs about fee structure iDeclaration (AFF, Tab 4)). Exhibit A: Performance Award PExhibit B: Legal Representation 

between Slavet and Appellant (3 
 Rumsey v. Department of Justice 

DC-1221-11-0466-A-1 

Appendix B 

Attorneys’ Fees Files 

Pleading 

No. Document Name Tab Date Pages Comments

5th 

(cont’d) 

Declaration of Appellant 

Exhibit C: invoice dated 4/22/09 Exhibit D: invoice dated 2/13/09 Exhibit E: invoice dated 6/23/09 Exhibit F: invoice dated 7/9/09 (Exhibit G: invoice dated 9/29/09 Exhibit H: invoice dated 1/26/09 Exhibit I: invoice dated 2/3/10 (Exhibit J: invoice dated 2/3/10 (Exhibit K: invoice dated 4/23/10 Exhibit L: invoice dated 6/9/10 (Exhibit M: invoice dated 8/9/10 (Exhibit N: invoice dated 8/13/10 Exhibit O: invoice dated 11/19/1Exhibit P: invoice dated 1/10/11 Exhibit Q: invoice dated 2/16/11 Exhibit R: invoice dated 9/27/11 Exhibit S: invoice dated 9/27/11 Exhibit T: invoice dated 9/27/11 Exhibit U: invoice dated 10/10/1Exhibit V: invoice dated 10/20/1Exhibit W: invoice dated 6/30/11 
 Rumsey v. Department of Justice 

DC-1221-11-0466-A-1 

Appendix B 

Attorneys’ Fees Files 

Pleading 

No. Document Name Tab Date Pages Comments

6th Supplement to Motion for 

Attorneys’ Fees 

7 01/22/14 ~119 

Exhibits A‐B, D-E: Summary of B

of Slavet and DiMuroGinsberg (Eis missing) Exhibit A: Legal Representation 

(3 pp.) 

Exhibit B: invoices dated 4/22/0

7/9/09; 9/29/09; 12/10/09; 1/26/3/8/10; 4/23/10; 5/20/10; 6/9/1011/18/10; 1/8/11; 1/10/11; 2/16/9/27/11 (three qty.); 10/10/11; 1

Exhibit D: email from Appellant 

regarding “To-Do List” (3 pp.) 

Exhibit E: email from Slavet to R

(2 pp.); letter from Slavet re: “E

Undertaking” (3 pp.); letter from 

AJ Clement (2 pp.) 

7th Supplement to Motion for 

Attorneys’ Fees 

11 02/05/14 ~114 

Exhibits A-E: (Tab 11 is a duplica

adds Exhibit C). Exhibit C: Statement of Escrow 

(10/22/12) (3 pp.) 
 Rumsey v. Department of Justice 

DC-1221-11-0466-A-1 

Appendix B 

Attorneys’ Fees Files 

Pleading 

No. Document Name Tab Date Pages Comments

8th Refiling of Legible Copy of 

Supplement, Tab 11 

12 02/25/14 ~114 

Exhibits A-E: (Tab 12 is a duplica

adds an email in Exhibit B) (emai

Hoge & Fein, P.C. to Burka (1 pg

9th Reply to 

Agency’s Response 13 03/02/14 22 

Supplemental Declaration of Burka Summary of Billing (8.5 pp.) (1.5 

differing from Summary at Tab 4as ¶ 7 bullet 2 in Burka’s first dec
 Rumsey v. Department of Justice 

DC-1221-11-0466-A-1 

Appendix C 

Petition for Review File 

Pleading 

No. Document Name Tab Date Pages Comments

1st

Request for Extension of Time to File Petition for Review (PFR) 

1 10/13/14 2 

Declaration of Burka (2.5 pp.) (thi

contains all new material, except the same as ¶ 1 in Attorneys’ FeeTab 4) 

2nd Petition for Review 3 12/08/14 23 

Appendices A-F (33 pp.) 

Appendix A: email from Burk

dated 4/17/14 (1 pg.) 

Appendix B: letter from Hon

to Hon. Eric Holder dated 9/16/

Appendix C: letter from Hon

to Hon. Robert Listenbee dated 

Appendix D: letter from Hon

Hon. Charles Grassley dated 10/

Appendix E: email from 

Hon. Robert Listenbee to DOJ’s Juvenile Justice and Delinquencdated 10/30/14 (2 pp.) 

Appendix F: Declaration of B

12/8/14 (16 pp.) 

Summary of Billing (11 pp.) (2.5 n

differ from Summary at AFF, Tab ¶ 1, which is the same as ¶ 1 in APFR File, Tab 1) 
 Rumsey v. Department of Justice 

DC-1221-11-0466-A-1 

Appendix C 

Petition for Review File 

Pleading 

No. Document Name Tab Date Pages Comments

3rd Reply to Agency’s Response to PFR 8 01/14/15 12.25 

1st of 3 Supplemental Declarations 

(3.5 pp.) 

Exhibit: Summary of Billing (1

(50% new material, 50% copied fdeclarations; 1 new page differing previous Summary) 

4th 

Motion for Leave to File Supplemental Pleading 

10 07/30/15 2 Stated purpose: to bring alleged

not available when record closed 

5th Supplemental Pleading to Submit 

New Evidence 

14 08/25/15 5.5 2nd of 3 Supplemental Declaration

(1.5 pp.) (all new material) 

6th Response to MSPB’s 

Briefing Order 

18 09/08/15 3 

Attorney/Client Arbitration Board 

Submission on Fee Arbitration Exhibit A: ACAB Consent Decis

Exhibit B: Order Granting Respo

Stay (3 pp.) 

Exhibit C: ACAB letter dated 11

7th Second Response to 

Briefing Order 

20 09/25/15 17 

3rd of 3 Supplemental DeclarationAppendix: Summary of Billing (1

material, 50% copied; 2 new pageprevious Summary)