                          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 rate 6 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

                        Hours                                           Page     Hours
            Date                          Description of Tasks
                      Requested                                         No. 1   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.
                         1 hr.                                                    1 hr.
    4    10/31/2013                 Communication with Appellant          5
                       30 mins.                                                 30 mins.
    5     11/1/2013    18 mins.      Communication 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.      Communication with Appellant          5      2 hrs.
                         1 hr.                                                    1 hr.
    12   11/17/2013                 Communication with Appellant          5
                       30 mins.                                                 30 mins.
                        2 hrs.
    13   11/19/2013                         Combined Tasks                5         0
                       30 mins.
                        3 hrs.                                                    1 hr.
    14   11/20/2013                         Combined Tasks                5
                       30 mins.                                                 24 mins.
                         1 hr.
    15   11/22/2013                             Research                  6         0
                       30 mins.
    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.
                         1 hr.
    19   12/2/2013                          Combined Tasks                6         0
                       12 mins.
    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
                    Hours                                     Page     Hours
       Date                         Description of Tasks
                  Requested                                   No. 1   Awarded
                     1 hr.
21   12/4/2013                       Combined Tasks            6      30 mins.
                   18 mins.
                     1 hr.
22   12/5/2013                       Combined Tasks            6          0
                   30 mins.
                    3 hrs.                                             3 hrs.
23   12/6/2013                       Combined Tasks            6
                   30 mins.                                           30 mins.
24   12/9/2013     45 mins.     Communication with Others      6      30 mins.
                     1 hr.
25   12/13/2013                      Combined Tasks            6        1 hr.
                   30 mins.
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.
                    2 hrs.                                             2 hrs.
37   12/31/2013                      Combined Tasks            7
                   30 mins.                                           30 mins.
38    1/2/2014       1 hr.           Combined Tasks            7        1 hr.
39    1/3/2014     42 mins.          Combined Tasks            7      24 mins.
                    5 hrs.        Draft and Completion of              5 hrs.
40    1/4/2014                                                 7
                   30 mins.         Written Documents                 30 mins.
41    1/5/2014      7 hrs.           Combined Tasks            8       7 hrs.
42    1/6/2014     24 mins.          Combined Tasks            8      18 mins.
                     1 hr.
43    1/7/2014                       Combined Tasks            8        1 hr.
                   30 mins.
                    2 hrs.
44    1/8/2014                       Combined Tasks            8        2 hrs.
                   30 mins.
                                  Draft and Completion of
45    1/9/2014      3 hrs.                                     8        3 hrs.
                                    Written Documents
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
                   Hours                                     Page     Hours
       Date                        Description of Tasks
                 Requested                                   No. 1   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
                   2 hrs.        Draft and Completion of               1 hr.
61   2/22/2014                                                9
                  30 mins.         Written Documents                 15 mins.
                   2 hrs.        Draft and Completion of               2 hrs.
62   2/23/2014                                                9
                  30 mins.         Written Documents                 30 mins.
                    1 hr.        Draft and Completion of               1 hr.
63   2/24/2014                                                9
                  30 mins.         Written Documents                 30 mins.
                   2 hrs.        Draft and Completion of               2 hrs.
64   2/25/2014                                                9
                  30 mins.         Written Documents                 30 mins.
                   2 hrs.        Draft and Completion of               2 hrs.
65   2/26/2014                                                10
                  30 mins.         Written Documents                 30 mins.
                   4 hrs.                                              3 hrs.
66   2/27/2014                      Combined Tasks            10
                  30 mins.                                           30 mins.
                    1 hr.
67   2/28/2014                      Combined Tasks            10       1 hr.
                  30 mins.
                                 Draft and Completion of
68   3/1/2014      4 hrs.                                     10       4 hrs.
                                   Written Documents
                    1 hr.        Draft and Completion of               1 hr.
69   3/2/2014                                                 10
                  30 mins.         Written Documents                 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
                        Hours                                     Page    Hours
           Date                         Description of Tasks
                      Requested                                   No. 1 Awarded
    73   3/22/2014     30 mins.           Combined Tasks           10    30 mins.
                         1 hr.                                             1 hr.
    74   3/31/2014                        Combined Tasks           10
                       30 mins.                                          30 mins.
    75    4/3/2014     24 mins.           Combined Tasks           10    24 mins.
                         1 hr.
    76    4/4/2014                        Combined Tasks           10      1 hr.
                       30 mins.
    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.
                         1 hr.
    86   10/10/2014                       Combined Tasks           11        0
                       30 mins.
    87   10/12/2014      1 hr.            Combined Tasks           11      1 hr.
                         1 hr.
    88   10/14/2014                      Combined Tasks 3          11      1 hr.
                       30 mins.
                         1 hr.    Draft and Completion of Written
    89   10/16/2014                                                11      1 hr.
                       30 mins.             Documents
                                                                          2 hrs.
    90   10/29/2014     4 hrs.               Research              11
                                                                         40 mins.
                         1 hr.
    91   10/30/2014                          Research              11      1 hr.
                       30 mins.
                        2 hrs.                                             1 hr.
    92   11/1/2014                           Research              11
                       30 mins.                                          40 mins.
                                  Draft and Completion of Written          1 hr.
    93   11/2/2014      2 hrs.                                     12
                                            Documents                    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
                     Hours                                     Page    Hours
        Date                         Description of Tasks
                   Requested                                   No. 1 Awarded
                               Draft and Completion of Written
94    11/3/2014      3 hrs.                                     12     2 hrs.
                                         Documents
                     2 hrs.    Draft and Completion of Written          1 hr.
95    11/4/2014                                                 12
                    30 mins.             Documents                    40 mins.
                               Draft and Completion of Written
96    11/5/2014      3 hrs.                                     12     2 hrs.
                                         Documents
                               Draft and Completion of Written         3 hrs.
97    11/6/2014      5 hrs.                                     12
                                         Documents                    20 mins.
                               Draft and Completion of Written
98    11/9/2014      3 hrs.                                     12     2 hrs.
                                         Documents
                               Draft and Completion of Written          1 hr.
99    11/12/2014     2 hrs.                                     12
                                         Documents                    20 mins.
                               Draft and Completion of Written
100   11/13/2014     3 hrs.                                     12     2 hrs.
                                         Documents
                               Draft and Completion of Written         2 hrs.
101   11/14/2014     4 hrs.                                     12
                                         Documents                    40 mins.
                     3 hrs.    Draft and Completion of Written         2 hrs.
102   11/30/2014                                                12
                    30 mins.             Documents                    20 mins.
                               Draft and Completion of Written         4 hrs.
103   12/1/2014      7 hrs.                                     12
                                         Documents                    40 mins.
104   12/2/2014       1 hr.               Research              12    40 mins.
                     3 hrs.    Draft and Completion of Written         2 hrs.
105   12/3/2014                                                 12
                    30 mins.             Documents                    20 mins.
                      1 hr.
106   12/4/2014                        Combined Tasks           12      1 hr.
                    30 mins.
                               Draft and Completion of Written         4 hrs.
107   12/5/2014      7 hrs.                                     12
                                         Documents                    40 mins.
                               Draft and Completion of Written         3 hrs.
108   12/6/2014      5 hrs.                                     12
                                         Documents                    20 mins.
                               Draft and Completion of Written         2 hrs.
109   12/7/2014      4 hrs.                                     12
                                         Documents                    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.
                     3 hrs.                                            2 hrs.
112    1/7/2015                        Combined Tasks           12
                    30 mins.                                          20 mins.
                                                                       2 hrs.
113    1/8/2015      4 hrs.            Combined Tasks           12
                                                                      40 mins.
                                                                       3 hrs.
114    1/9/2015      5 hrs.            Combined Tasks           13
                                                                      20 mins.
                         Rumsey v. Department of Justice                 6 of 7
                                DC-1221-11-0466-A-1
                                    Appendix A
                         Hours                                     Page    Hours
             Date                        Description of Tasks
                       Requested                                   No. 1 Awarded
                                   Draft and Completion of Written
    115    1/10/2015      6 hrs.                                    13     4 hrs.
                                              Documents
                          2 hrs.                                            1 hr.
    116    1/11/2015                       Combined Tasks           13
                        30 mins.                                          40 mins.
                                                                           3 hrs.
    117    1/12/2015      5 hrs.           Combined Tasks           13
                                                                          20 mins.
                                   Draft and Completion of Written         4 hrs.
    118    1/13/2015      7 hrs.                                    13
                                              Documents                   40 mins.
                                                                            1 hr.
    119    1/14/2015     ~2 hrs.           Combined Tasks           13
                                                                          20 mins.
                                       Draft and Completion of
    120    7/29/2015      2 hrs.                                    13     2 hrs.
                                         Written Documents
    121    7/30/2015    30 mins.           Combined Tasks           13    30 mins.
                                       Draft and Completion of
    122    8/22/2015      2 hrs.                                    13     2 hrs.
                                         Written Documents
    .
     123   8/25/2015    30 mins.           Combined Tasks           13    30 mins.
    *124   8/26/2015      3 hrs.           Combined Tasks           13     3 hrs.
                          1 hr.                                             1 hr.
    *125   8/27/2015                       Combined Tasks           13
                        30 mins.                                          30 mins.
                          1 hr.                                             1 hr.
    *126   8/28/2015                       Combined Tasks           13
                        30 mins.                                          30 mins.
                          1 hr.                                             1 hr.
    *127   8/29/2015                       Combined Tasks           13
                        30 mins.                                          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.
                          1 hr.                                             1 hr.
    *130   9/4/2015                        Combined Tasks           14
                        30 mins.                                          30 mins.
                          1 hr.                                             1 hr.
    *131   9/5/2015                        Combined Tasks           14
                        30 mins.                                          30 mins.
    *132   9/8/2015     27 mins.           Combined Tasks           14    27 mins.
                          1 hr.                                             1 hr.
    *133   9/10/2015                       Combined Tasks           14
                        24 mins.                                          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
                        Hours                                      Page     Hours
           Date                         Description of Tasks
                      Requested                                    No. 1   Awarded
                         1 hr.                                               1 hr.
*134   9/11/2015                         Combined Tasks              14
                       30 mins.                                            30 mins.
                        3 hrs.                                              3 hrs.
*135   9/12/2015                         Combined Tasks              14
                       30 mins.                                            30 mins.
                         1 hr.                                               1 hr.
*136   9/13/2015                         Combined Tasks              14
                       30 mins.                                            30 mins.
*137   9/14/2015        2 hrs.           Combined Tasks              14     2 hrs.
                        2 hrs.                                              2 hrs.
*138   9/15/2015                         Combined Tasks              14
                       30 mins.                                            30 mins.
                                      Draft and Completion of
*139   9/16/2015        5 hrs.                                       14      5 hrs.
                                        Written Documents
                        6 hrs.        Draft and Completion of               6 hrs.
*140   9/17/2015                                                     14
                       30 mins.         Written Documents                  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.
                        3 hrs.                                              3 hrs.
*145   9/22/2015                         Combined Tasks              14
                       30 mins.                                            30 mins.
                        2 hrs.                                              2 hrs.
*146   9/24/2015                         Combined Tasks              15
                       30 mins.                                            30 mins.

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

                  Total Hours and Fees Awarded: 225.3 hrs. or 225 hrs. 18 mins.

Block B:          11% Reduction of Hours Awarded for Work on PFR and Reply:
                    71.67 x 89% = 63.79 hrs. or 63 hrs. 47 mins.
 Hours and
  Amount          Total Hours and Fees Awarded after Reduction:
 Awarded            (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                                      1 of 4
                                       DC-1221-11-0466-A-1
                                             Appendix B


                                        Attorneys’ Fees Files
Pleading
            Document Name    Tab     Date      Pages                       Comments
   No.
           Motion for
  1st                         1     12/17/13    1.5    Motion for Extension of Time
           Attorneys’ Fees
           Motion for
  2nd                         3     01/08/13   17.3    Appellant’s Initial Motion for Attorneys’ Fees
           Attorneys’ Fees
                                                       Exhibit A: Summary of Billing for Burka (all new
           Declaration of                               material, except ¶ 5 has the same substantive
  3rd                         4     01/10/14    6.5
           Robert Burka                                 information as ¶¶ 14‑15 in Appellant’s Declaration
                                                        on page 6)
                                                       Exhibits A-D: DiMuroGinsberg
                                                        Exhibit A: Letter of Legal Service Agreement
  4th      Declaration of                                from DiMuroGinsberg to Appellant (2 pp.)
                              5     01/10/14   17.5
           Jonathan Mook                                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.)
                                                       Exhibits A-W: billing for all three attorneys
                                                        primarily, of Beth Slavet and briefly, of
                                                        DiMuroGinsberg and Burka (Burka mentioned
  5th      Declaration                                  2 paragraphs about fee structure in his previous
                              6     01/12/14   ~120
           of Appellant                                 Declaration (AFF, Tab 4)).
                                                        Exhibit A: Performance Award Plan (5 pp.)
                                                        Exhibit B: Legal Representation Agreement
                                                         between Slavet and Appellant (3 pp.)
                                  Rumsey v. Department of Justice                                          2 of 4
                                      DC-1221-11-0466-A-1
                                            Appendix B


                                       Attorneys’ Fees Files
Pleading
            Document Name   Tab     Date     Pages                             Comments
   No.
                                                      Exhibit   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.)
  5th      Declaration
                                                      Exhibit   M:   invoice   dated   8/9/10 (2 pp.)
(cont’d)   of Appellant
                                                      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. Department of Justice                                    3 of 4
                                       DC-1221-11-0466-A-1
                                             Appendix B


                                        Attorneys’ Fees Files
Pleading
            Document Name    Tab     Date      Pages                        Comments
   No.
                                                       Exhibits A‑B, D-E: Summary of Billing, primarily,
                                                        of Slavet and DiMuroGinsberg (Exhibit C
                                                        is missing)
                                                        Exhibit A: Legal Representation Agreement
                                                          (3 pp.)
                                                        Exhibit B: invoices dated 4/22/09; 6/23/09;
           Supplement to                                  7/9/09; 9/29/09; 12/10/09; 1/26/10; 2/3/10;
  6th                                                     3/8/10; 4/23/10; 5/20/10; 6/9/10; 8/13/10;
           Motion for         7     01/22/14   ~119
                                                          11/18/10; 1/8/11; 1/10/11; 2/16/11; 6/29/11;
           Attorneys’ Fees
                                                          9/27/11 (three qty.); 10/10/11; 10/20/11 (87 pp.)
                                                        Exhibit D: email from Appellant to Slavet
                                                          regarding “To-Do List” (3 pp.)
                                                        Exhibit E: email from Slavet to Rolest Shaub
                                                          (2 pp.); letter from Slavet re: “Ethics
                                                          Undertaking” (3 pp.); letter from Robert Sadler to
                                                          AJ Clement (2 pp.)
                                                       Exhibits A-E: (Tab 11 is a duplicate of Tab 7, but
           Supplement to
  7th                                                   adds Exhibit C).
           Motion for        11     02/05/14   ~114
                                                        Exhibit C: Statement of Escrow Account
           Attorneys’ Fees
                                                         (10/22/12) (3 pp.)
                                       Rumsey v. Department of Justice                                   4 of 4
                                           DC-1221-11-0466-A-1
                                                 Appendix B


                                            Attorneys’ Fees Files
Pleading
            Document Name        Tab     Date      Pages                       Comments
   No.
           Refiling of Legible                             Exhibits A-E: (Tab 12 is a duplicate of Tab 11, but
  8th      Copy of               12     02/25/14   ~114     adds an email in Exhibit B) (email from Crowley,
           Supplement, Tab 11                               Hoge & Fein, P.C. to Burka (1 pg.)).
                                                           Supplemental Declaration of Burka (2 pp.)
  9th      Reply to                                        Summary of Billing (8.5 pp.) (1.5 new pages
                                 13     03/02/14    22
           Agency’s Response                                differing from Summary at Tab 4; ¶ 2 is the same
                                                            as ¶ 7 bullet 2 in Burka’s first declaration)
                                        Rumsey v. Department of Justice                                    1 of 2
                                            DC-1221-11-0466-A-1
                                                  Appendix C


                                            Petition for Review File
Pleading
            Document Name         Tab     Date      Pages                        Comments
   No.
           Request for                                      Declaration of Burka (2.5 pp.) (this pleading
           Extension of Time                                 contains all new material, except for ¶ 1, which is
  1st                              1     10/13/14     2
           to File Petition for                              the same as ¶ 1 in Attorneys’ Fees File (AFF),
           Review (PFR)                                      Tab 4)
                                                            Appendices A-F (33 pp.)
                                                             Appendix A:        email from Burka to AJ Clement
                                                              dated 4/17/14 (1 pg.)
                                                             Appendix B:        letter from Hon. Carolyn Lerner
                                                              to Hon. Eric Holder dated 9/16/14 (12 pp.)
                                                             Appendix C:        letter from Hon. Charles Grassley
                                                              to Hon. Robert Listenbee dated 9/5/14 (3 pp.)
                                                             Appendix D:        letter from Hon. Peter Kadrik to
                                                              Hon. Charles Grassley dated 10/28/14 (7 pp.)
  2nd      Petition for Review     3     12/08/14    23      Appendix E:        email from
                                                              Hon. Robert Listenbee to DOJ’s Office of
                                                              Juvenile Justice and Delinquency Prevention
                                                              dated 10/30/14 (2 pp.)
                                                             Appendix F:        Declaration of Burka dated
                                                              12/8/14 (16 pp.)
                                                            Summary of Billing (11 pp.) (2.5 new pages that
                                                             differ from Summary at AFF, Tab 13, except for
                                                             ¶ 1, which is the same as ¶ 1 in AFF, Tab 4, and
                                                             PFR File, Tab 1)
                                       Rumsey v. Department of Justice                                   2 of 2
                                           DC-1221-11-0466-A-1
                                                 Appendix C


                                           Petition for Review File
Pleading
            Document Name        Tab     Date      Pages                       Comments
   No.
                                                           1st of 3 Supplemental Declarations of Burka
                                                            (3.5 pp.)
           Reply to Agency’s                               Exhibit:     Summary of Billing (11.5 pp.)
  3rd                             8     01/14/15   12.25
           Response to PFR                                  (50% new material, 50% copied from previous
                                                            declarations; 1 new page differing from
                                                            previous Summary)
           Motion for Leave to
  4th                            10     07/30/15     2     Stated purpose:   to bring allegedly new evidence
           File Supplemental
                                                            not available when record closed
           Pleading
           Supplemental
  5th                            14     08/25/15    5.5    2nd of 3 Supplemental Declarations of Burka
           Pleading to Submit
                                                            (1.5 pp.) (all new material)
           New Evidence
                                                           Attorney/Client Arbitration Board (ACAB)
                                                            Submission on Fee Arbitration
  6th      Response to MSPB’s    18     09/08/15     3      Exhibit A: ACAB Consent Decision (3 pp.)
           Briefing Order                                   Exhibit B: Order Granting Respondent’s Motion to
                                                             Stay (3 pp.)
                                                            Exhibit C: ACAB letter dated 11/14/14 (4 pp.)
                                                           3rd of 3 Supplemental Declarations of Burka (4 pp.)
  7th      Second Response to    20     09/25/15    17     Appendix: Summary of Billing (12 pp.) (50% new
           Briefing Order                                   material, 50% copied; 2 new pages differing from
                                                            previous Summary)
