Rumsey v. Department of Justice ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
ELISSA RUMSEY,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2016-2661
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-11-0466-A-1.
______________________
Decided: August 10, 2017
______________________
ROBERT ALAN BURKA, Washington, DC, argued for
petitioner.
HILLARY STERN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
ALLISON KIDD-MILLER, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER.
______________________
Before NEWMAN, DYK, and STOLL, Circuit Judges.
2 RUMSEY v. DOJ
DYK, Circuit Judge.
Elissa Rumsey is a federal employee. After prevailing
in an individual right of action appeal with the Merit
Systems Protection Board (“Board”) alleging whistleblow-
er reprisal, Ms. Rumsey sought attorney’s fees pursuant
to 5 U.S.C. § 1221(g)(1)(B). The Board refused to award
attorney’s fees for the services of Beth Slavet, Esq., one of
the three lawyers or firms that represented Ms. Rumsey
during the course of the proceedings before the Board.
Slavet was Ms. Rumsey’s principal lawyer leading up to
and during the initial hearing before the administrative
judge. Ms. Rumsey now petitions for review of that deci-
sion. We conclude that Ms. Rumsey carried her burden of
showing entitlement to some award of attorney’s fees.
Accordingly, we reverse and remand.
BACKGROUND
Ms. Rumsey was and is a Compliance Monitoring Co-
ordinator in the Office of Juvenile Justice and Delinquen-
cy Prevention (“OJJDP” or “agency”) within the
Department of Justice. Ms. Rumsey protested certain
grant-making decisions she perceived to be improper. In
that connection, Ms. Rumsey publicly disclosed (to the
media and to members of Congress) her belief that the
agency had failed to ensure compliance with grant terms
and that the agency had covered up the submission of
fraudulent data by one grantee. Ms. Rumsey filed a
complaint with the Inspector General regarding this
alleged fraud. Congress subsequently investigated these
disclosures by Ms. Rumsey and other whistleblowers, and
certain members specifically recognized the efforts of Ms.
Rumsey in bringing about corrective legislative action.
Ms. Rumsey filed a complaint with the Office of Spe-
cial Counsel alleging whistleblower reprisal. Specifically,
Ms. Rumsey alleged that the agency, inter alia, gave her
improperly low performance ratings, moved some of her
job duties to other employees, and canceled her telework
RUMSEY v. DOJ 3
agreement. Then, in 2011, she filed an individual right of
action appeal with the Board. The administrative judge
denied corrective action. In October 2013, on petition for
review, the Board reversed and ordered corrective action
with respect to her performance rating and telework
agreement.
Ms. Rumsey then filed a motion seeking attorney’s
fees for all three of the lawyers or firms who represented
her during the course of the proceedings. The Board
awarded attorney’s fees for two of the lawyers or firms,
excluding certain hours and applying an equitable 60-
percent reduction to the lodestar amounts, in light of Ms.
Rumsey’s limited degree of success in her individual right
of action appeal. This case concerns only attorney’s fees
for Ms. Rumsey’s representation by Slavet from October
2008 until November 2011. The period included filing of
the complaint with the Office of Special Counsel and the
individual right of action appeal with the Board.
Slavet was an expert in federal employment law, and
whistleblowing in particular, with over 25 years of experi-
ence. This experience included over seven years of com-
bined service as a member, vice chairman, and chairman
of the Board.
Ms. Rumsey initially sought reimbursement for the
$87,000 she had already paid to Slavet and indicated that
she would later claim any additional amounts paid to
Slavet. In support of her motion, Ms. Rumsey submitted,
inter alia, a declaration detailing the invoices she received
from Slavet and the amounts paid. She also attached a
copy of the representation agreement and copies of
Slavet’s billing invoices with detailed time records. Alt-
hough Slavet had sought to intervene for the limited
purpose of supporting an application for attorney’s fees,
the Board denied this motion. Ms. Rumsey then supple-
mented her motion for attorney’s fees. This filing made
clear that Ms. Rumsey sought a fee award for any addi-
4 RUMSEY v. DOJ
tional amounts that were paid to Slavet. It attached a
declaration from Slavet regarding the nature of the work
she performed and this declaration included a copy of the
representation agreement, billing invoices, detailed time
records, and a statement of account showing amounts
paid by Ms. Rumsey.
At the time of Ms. Rumsey’s motion for attorney’s
fees, Ms. Rumsey and Slavet were in a disagreement as to
the outstanding invoices. Slavet claimed that Ms. Rumsey
owed her an additional $145,000 for her services, and Ms.
Rumsey claimed that Slavet’s fees were excessive. The
parties submitted their dispute to arbitration with the
District of Columbia Bar, Attorney/Client Arbitration
Board. At the request of Ms. Rumsey, the arbitration was
stayed pending the initial decision of the administrative
judge regarding the motion for attorney’s fees. The Board
was made aware of the existence of this fee dispute.
Because of the fee dispute, in filing Slavet’s declara-
tion with the Board, Ms. Rumsey distanced herself from
Slavet. She stated that Slavet’s views expressed in the
declaration were “solely those of Ms. Slavet” and that
“Ms. Rumsey’s positions diverge from those expressed by
Ms. Slavet, including (but not limited to) Ms. Slavet’s
interpretation of her retention agreement with Ms. Rum-
sey, as well as the hours, time charges and receipts.”
J.A. 172–73. In briefing her motion for attorney’s fees, Ms.
Rumsey stated: “The Agency also claims that much of Ms.
Slavet’s work was ‘excessive’ and her ‘bills are full of
meritless, unrecoverable, and frivolous legal work’ . . . .
[T]here may be some truth to this claim that Ms. Slavet’s
time charges should not be fully compensable.” J.A. 413.
In October 2014, an initial decision by the administra-
tive judge denied Ms. Rumsey’s motion for attorney’s fees
in its entirety with respect to the representation by Slavet
for failure to show that the fees claimed were reasonable.
From a “perusal of the various invoices,” the administra-
RUMSEY v. DOJ 5
tive judge concluded that they were “cursory, vague and
confusing,” they relied on initials and abbreviations, and
they included some entries for clerical work and consulta-
tion with media, which are not legal services. J.A. 105.
The administrative judge found that since Ms. Rumsey
“expressly did not attest to or show the reasonableness of
Slavet’s fees, no amount can be awarded.” J.A. 106. The
administrative judge had also previously noted various
deficiencies in Slavet’s representation of Ms. Rumsey,
such as the submission of “many redundant, rambling and
repetitive pleadings,” J.A. 382, her “repeated failure to
meet filing deadlines and repeated inability to submit
complete filings,” J.A. 384, and a “pattern of disregarding
deadlines,” J.A. 386. The administrative judge previously
awarded sanctions against Ms. Rumsey for Slavet’s fail-
ure to respond to the agency’s discovery requests and an
order compelling a response.
On March 19, 2015, Ms. Rumsey and Slavet entered a
settlement agreement in the fee dispute. They agreed that
of the $145,445.09 in outstanding fees sought by Slavet,
Ms. Rumsey would pay a total of $120,000.
As ordered by the Board, Ms. Rumsey submitted this
settlement agreement for consideration with her petition
for review. The Board affirmed the decision of the admin-
istrative judge with respect to attorney’s fees for Slavet’s
representation. The Board concluded that Ms. Rumsey
failed to carry her burden of showing that the fees sought
were reasonable and there was no factual basis to con-
clude that any amount was recoverable, finding that Ms.
Rumsey did not “vouch for the reasonableness” of the fee
invoices. J.A. 4.
Before the Board, the agency also argued that because
Ms. Slavet became a federal employee in April 2012,
conflict of interest laws codified at 18 U.S.C. §§ 203(a) and
205(a) preclude an award for her legal services rendered
6 RUMSEY v. DOJ
prior to federal employment. The Board did not reach this
position, which seems to be devoid of support.
Ms. Rumsey petitions for review of the Board’s deci-
sion. 5 U.S.C. § 7703(b)(1)(A). We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We review decisions by the Board and “set aside any
agency action, findings, or conclusions found to be—
(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review questions of law,
including interpretations of statutes or regulations, de
novo. Welshans v. U.S. Postal Serv., 550 F.3d 1100, 1102
(Fed. Cir. 2008).
I
When a petitioner prevails before the Board and the
Board orders corrective action, 5 U.S.C. § 1221(g)(1)(B)
mandates that such “[c]orrective action shall include
attorney’s fees and costs,” including those due both at the
Board level and on appeal. 1 (emphasis added). We think
1 5 U.S.C. §§ 1221(g)(2)–(3) provide:
(2) If an employee, former employee, or applicant
for employment is the prevailing party before the
Merit Systems Protection Board, and the decision
is based on a finding of a prohibited personnel
practice, the agency involved shall be liable to the
employee, former employee, or applicant for rea-
sonable attorney’s fees and any other reasonable
costs incurred.
RUMSEY v. DOJ 7
that the mandatory language of these provisions makes
clear that a petitioner who is a prevailing party is entitled
to attorney’s fees and costs, even if the supporting docu-
mentation is in some way deficient.
To be sure, “the fee applicant bears the burden of es-
tablishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). Submission of invoic-
es and billing records is how fee applicants routinely
satisfy this burden of showing reasonable hours expended.
See, e.g., Webb v. Bd. of Educ., 471 U.S. 234, 238 n.6
(1985) (“Contemporaneously recorded time sheets are the
preferred practice” over “a reconstruction of the hours . . .
counsel spent on the matter.”). And, “[c]ourts customarily
require the applicant to produce contemporaneous billing
records or other sufficient documentation so that the
district court can fulfill its duty to examine the applica-
tion for noncompensable hours.” Gagnon v. United Tech-
nisource, Inc., 607 F.3d 1036, 1044 (5th Cir. 2010)
(quoting La. Power & Light Co. v. Kellstrom, 50 F.3d 319,
324 (5th Cir. 1995)). While “counsel . . . is not required to
record in great detail how each minute of his time was
expended . . . at least counsel should identify the general
subject matter of his time expenditures.” Hensley, 461
U.S. at 437 n.12.
(3) If an employee, former employee, or applicant
for employment is the prevailing party in an ap-
peal from the Merit Systems Protection Board, the
agency involved shall be liable to the employee,
former employee, or applicant for reasonable at-
torney’s fees and any other reasonable costs in-
curred, regardless of the basis of the decision.
(emphases added).
8 RUMSEY v. DOJ
Courts routinely determine that reductions are neces-
sary for hours that are excessive and redundant. See, e.g.,
Blum v. Stenson, 465 U.S. 886, 902 n.19 (1984) (“A district
court is expressly empowered to exercise discretion in
determining whether an award is to be made and if so its
reasonableness.”). “If fee applicants do not exercise billing
judgment, courts are obligated to do it for them, to cut the
amount of hours for which payment is sought, pruning out
those that are ‘excessive, redundant, or otherwise unnec-
essary.’” ACLU v. Barnes, 168 F.3d 423, 428 (11th Cir.
1999).
The role of opposing counsel in this situation is to
identify unrecoverable expenditures. Before the Board,
the agency here argued, inter alia, that certain hours
were unreasonable because they related to untimely and
meritless motions, an untimely response to a motion for
sanctions, and a legal theory foreclosed by a prior sanc-
tion order. The agency also argued that the records failed
to sufficiently identify the subjects of certain tasks, meet-
ings, and telephone calls. These objections applied to only
20 percent of the approximate total of 780 hours billed by
Slavet for which Ms. Rumsey sought an award of attor-
ney’s fees.
Instead of examining the record before it and the
agency’s objections, the Board found that Ms. Rumsey had
“acknowledged that much of Ms. Slavet’s work was ‘exces-
sive’ and that her invoices were ‘full of meritless, unrecov-
erable, and frivolous legal work,’” J.A. 4, and then agreed
with the administrative judge’s reasoning that Slavet’s
invoices constituted inadequate documentation. The
Board’s statement is not an accurate description of Ms.
Rumsey’s concession. She simply quoted the agency’s
arguments and conceded that “there may be some truth to
th[e] claim that Ms. Slavet’s time charges should not be
fully compensable.” J.A. 413.
RUMSEY v. DOJ 9
The Board’s approach is not consistent with our prec-
edent. We have held that “[w]here documentation is
inadequate, the district court is not relieved of its obliga-
tion to award a reasonable fee.” Slimfold Mfg. Co. v.
Kinkead Indus., Inc., 932 F.2d 1453, 1459 (Fed. Cir. 1991)
(quoting Norman v. Hous. Auth., 836 F.2d 1292, 1303
(11th Cir. 1988)). In Slimfold, the district court deter-
mined that the case was exceptional for the purposes of
attorney’s fees under 35 U.S.C. § 285 but found the pa-
tentee’s showing to be deficient. We reversed one of the
infringement findings on appeal and remanded for recon-
sideration of § 285. We noted that, as here, the “fee appli-
cation certainly had its flaws, [but] it is fairly detailed
and extensive,” and “a district court itself has experience
in determining what are reasonable hours and reasonable
fees, and should rely on that experience and knowledge if
the documentation is considered inadequate.” Slimfold,
932 F.2d at 1459; see also Thompson v. Pharmacy Corp. of
Am., Inc., 334 F.3d 1242, 1246 (11th Cir. 2003) (“[T]he
district court’s conclusion that Ms. Munson should receive
no compensation for the time she spent on the fee issue
was an abuse of discretion. . . . [W]e are confident that
some legitimate time was expended . . . .”).
Although Slimfold involved attorney’s fees under 35
U.S.C. § 285, as the Supreme Court has recognized, the
construction of one provision “may be influenced by lan-
guage of other statutes which are not specifically related,
but which apply to similar persons, things, or relation-
ships.” Nat’l Fed’n of Fed. Emps. v. Dep’t of Interior, 526
U.S. 86, 105 (1999) (quoting 2B N. Singer, Sutherland on
Statutory Construction § 53.03, at 233 (5th ed. 1992)); see
also Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 580
(2008) (relying on Missouri v. Jenkins, 491 U.S. 274
(1989), which construed the attorney’s fee provision of 42
U.S.C. § 1988, to construe 5 U.S.C. § 504(b)(1)(A)). This is
indeed an easier case than Slimfold, since § 285 provides
that a court “may award reasonable attorney fees,”
10 RUMSEY v. DOJ
whereas 5 U.S.C. § 1221(g)(1)(B) is mandatory and pro-
vides that “[c]orrective action shall include attorney’s fees
and costs.” (emphases added.)
The government is unable to meaningfully distinguish
the situation in Slimfold from the situation in this case.
Here, Ms. Rumsey submitted extensive billing records
and other information concerning Slavet’s charges, the
type of information usually used to support an award of
attorney’s fees. In fact, this is precisely the type of infor-
mation (with similar detail) that the Board relied on to
award attorney’s fees for the other two attorneys or firms.
Ms. Rumsey’s concessions provide no basis for a deni-
al of all fees for Slavet’s representation. While Ms. Rum-
sey questioned some of Slavet’s hours, refused to “vouch
for the reasonableness of the itemized charges listed on
the invoices,” J.A. 4, and expressed her opinion that
“there may be some truth to th[e] claim that Ms. Slavet’s
time charges should not be fully compensable,” J.A. 413,
she never suggested that Slavet’s charges were entirely
unwarranted. Indeed, she agreed to pay the bulk of
Slavet’s charges. While Ms. Rumsey’s statements regard-
ing Slavet’s declaration and billing invoices might be
viewed as evidence that the agency and the Board should
take a careful look to see whether particular hours were
unreasonable, they cannot be viewed as an admission that
all of the itemized records were unreasonable. Under
these circumstances, we see no basis for denying attor-
ney’s fees in their entirety.
The Board had an obligation to review these records,
identify any hours that were “excessive, redundant, or
otherwise unnecessary,” ACLU, 168 F.3d at 428, deter-
mine the appropriate hourly rate and, if applicable, any
multiplier, and award a reasonable fee. See 5 U.S.C.
§§ 1221(g)(1)(B), (g)(2). On petition for review in this
court, Ms. Rumsey does not challenge the award of attor-
ney’s fees for her other two lawyers or firms, which was
RUMSEY v. DOJ 11
reduced by 60 percent, and concedes that a similar reduc-
tion is applicable to any award for Slavet’s services. We
may assume that the Board would agree and include a
similar such reduction.
II
Before the Board, the agency alternatively argued
that federal conflict of interest laws, including 18 U.S.C.
§§ 203(a) and 205(a), precluded any award for Slavet’s
representation of Ms. Rumsey because Slavet is a current
federal employee.
Section 205(a) provides penalties for, inter alia,
[w]hoever, being an officer or employee of the
United States . . . receives any gratuity, or any
share of or interest in any . . . claim [against the
United States], in consideration of assistance in
the prosecution of such claim.
Section 203(a) provides penalties for, inter alia,
[w]hoever, . . . directly or indirectly . . . demands,
seeks, receives, accepts, or agrees to receive or ac-
cept any compensation for any representational
services, as agent or attorney or otherwise . . . at a
time when such person is an officer or employee or
. . . of the United States . . . in relation to any pro-
ceeding . . . in which the United States is a party
or has a direct and substantial interest.
An opinion by the Office of Legal Counsel found that § 203
barred recovery of attorney’s fees by a lawyer currently
employed by the government when those fees related to
prior representation of a client in proceedings before the
Board. U.S. Dep’t of Justice, Office of Legal Counsel,
Attorney’s Fees for Legal Service Performed Prior to
Federal Employment, 1999 WL 33219985 (Feb. 11, 1999).
While these provisions might apply to the receipt of
an award of attorney’s fees by Slavet as a current federal
12 RUMSEY v. DOJ
employee, we see nothing that bears on Ms. Rumsey’s
ability to lawfully collect attorney’s fees pursuant to 5
U.S.C. §§ 1221(g)(1)(B)–(g)(2). Such fees are properly the
property of Ms. Rumsey, as the employee, not Slavet, the
attorney. See id. § 1221(g)(2) (“[T]he agency involved shall
be liable to the employee . . . for reasonable attorney’s fees
and any other reasonable costs incurred.”) (emphasis
added); cf. Jensen v. Dep’t of Transp., 858 F.2d 721, 723–
24 (Fed. Cir. 1988) (holding that an award of attorney’s
fees under another provision, 5 U.S.C. § 7701(g)(1), with
markedly different language, 2 must be paid to counsel,
not the former employee). This is especially so given that
Slavet did not preserve in the settlement agreement with
Ms. Rumsey any claim for additional fees. Slavet also
agreed to irrevocably forfeit any such claim upon entering
federal employment. Thus, Slavet has no outstanding
interest in an award of attorney’s fees to Ms. Rumsey, and
the statutes on which the agency relies are inapplicable to
Ms. Rumsey.
CONCLUSION
The decision by the Board is reversed and the case is
remanded for further proceedings consistent with this
opinion. 3
2 Section 7701(g)(1) provides: “the Board . . . may
require payment by the agency involved of reasonable
attorney fees incurred by an employee or applicant for
employment if the employee or applicant is the prevailing
party and the Board . . . determines that payment by the
agency is warranted in the interest of justice.”
3 To the extent that Ms. Rumsey is ultimately suc-
cessful in her claim for attorney’s fees for Slavet’s repre-
sentation, the Board should award appropriate fees for
the work of Robert Burka, Esq., in securing that award
before the Board and in this court.
RUMSEY v. DOJ 13
REVERSED AND REMANDED
COSTS
Costs to Ms. Rumsey.