Elissa Rumsey v. Department of Justice , 2016 MSPB 28 ( 2016 )

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)