Rumsey v. Department of Justice, 866 F.3d 1375

Background

Elissa Rumsey, a DOJ OJJDP employee, prevailed on whistleblower claims before the Merit Systems Protection Board (Board), which ordered corrective action including attorney’s fees under 5 U.S.C. § 1221(g).
Rumsey sought fees for three counsel; the Board awarded fees for two firms but denied all fees for Beth Slavet, who represented Rumsey from Oct 2008–Nov 2011, citing inadequate documentation and earlier criticisms of Slavet’s performance.
Rumsey submitted Slavet’s engagement agreement, contemporaneous billing invoices, time records, and proof of payments; a contemporaneous fee dispute between Rumsey and Slavet existed and was litigated/arbitrated separately.
The administrative judge characterized Slavet’s invoices as cursory and found Rumsey had not vouched for their reasonableness; the Board affirmed and denied any award for Slavet’s work.
After appeal, Rumsey and Slavet settled their fee dispute with Rumsey agreeing to pay $120,000 of Slavet’s claimed $145,445; Rumsey concedes a substantial percentage reduction is appropriate for any award.
The Federal Circuit reversed the Board, holding that prevailing parties are entitled to attorney’s fees under § 1221(g) and the Board must award a reasonable fee even when documentation is imperfect; the case was remanded for calculation consistent with the opinion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a prevailing Board order under 5 U.S.C. § 1221(g) permits denying all attorney’s fees for one counsel when fee documentation is imperfect	Rumsey: § 1221(g) mandates attorney’s fees for prevailing employees; she submitted invoices/time records and a settlement showing payment — some deficiency is not a bar to any award	Agency: Slavet’s invoices are inadequate, excessive, and include nonrecoverable work; some entries merit denial; Board should deny fees for Slavet	Court: Reversed — Board must award some reasonable fees; imperfect documentation does not permit wholesale denial; Board must identify and exclude unreasonable hours and then award fees (with appropriate reduction)
Burden of proof and effect of partial concessions by the prevailing party regarding reasonableness of counsel’s bills	Rumsey: She provided records and did not concede all charges; settlement shows she accepted most fees	Agency: Rumsey’s statements and failure to “vouch” for invoices justify denial	Court: Rumsey’s limited concessions do not justify denying all fees; Board still must review records and exercise billing-judgment adjustments
Applicability of precedent requiring contemporaneous billing for fee awards when records are imperfect	Rumsey: Submitted contemporaneous billing and supporting materials; Board should use its own experience to estimate reasonable fees if records imperfect	Agency: Relied on cases emphasizing need for detailed contemporaneous records to deny or reduce fees	Court: Cited precedent that courts/tribunals must still award reasonable fees and may rely on their experience to adjust when documentation is inadequate
Whether conflict-of-interest statutes (18 U.S.C. §§ 203, 205) bar an award to Rumsey because Slavet later became a federal employee	Rumsey: Fees are the employee’s property under § 1221(g)(2); Slavet waived claims; statutes don’t prevent Rumsey’s recovery	Agency: Slavet’s later federal employment may preclude receiving fees for prior representation	Court: Rejected agency’s position as irrelevant to Rumsey’s right to recover fees; statutes would affect Slavet personally but not Rumsey’s entitlement; Slavet had no remaining claim

Key Cases Cited

Hensley v. Eckerhart, 461 U.S. 424 (1983) (fee applicant bears burden to document hours and rates; billing judgment required)
Webb v. Board of Education, 471 U.S. 234 (1985) (contemporaneous time records are preferred practice)
Gagnon v. United Technisource, Inc., 607 F.3d 1036 (5th Cir.) (courts customarily require contemporaneous billing or sufficient documentation)
La. Power & Light Co. v. Kellstrom, 50 F.3d 319 (5th Cir.) (documentation needed for district court to examine noncompensable hours)
Blum v. Stenson, 465 U.S. 886 (1984) (district courts exercise discretion in awarding reasonable fees)
ACLU v. Barnes, 168 F.3d 423 (11th Cir.) (courts must prune excessive or redundant hours when applicant fails to exercise billing judgment)
Slimfold Mfg. Co. v. Kinkead Indus., Inc., 932 F.2d 1453 (Fed. Cir.) (even with flawed documentation, courts should use experience to determine reasonable fees)
Norman v. Housing Authority, 836 F.2d 1292 (11th Cir.) (insufficient documentation does not relieve court of obligation to award reasonable fee)
Thompson v. Pharmacy Corp. of Am., Inc., 334 F.3d 1242 (11th Cir.) (total denial of compensation for fee-issue time was abuse of discretion where some legitimate time was expended)
Nat’l Fed’n of Fed. Emps. v. Dep’t of Interior, 526 U.S. 86 (1999) (statutory construction may be informed by related statutes)
Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008) (interpretive reliance on precedent construing fee provisions)
Missouri v. Jenkins, 491 U.S. 274 (1989) (awarding attorney’s fees under fee-shifting statutes)
Jensen v. Dep’t of Transportation, 858 F.2d 721 (Fed. Cir.) (distinguishing fee payment recipients based on statutory language)