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, Washington, 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 whistleblower 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 decision. 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 Coordinator in the Office of Juvenile Justice and Delinquency 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 Special 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 experience. This experience included over seven years of combined 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. Although 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 supplemented 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 declaration 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. Rumsey, 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 administrative 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 consultation 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 failure 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 administrative 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 conclude 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 decision. 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 otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial evidence.” 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 reasonable 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 documentation is in some way deficient. 

To be sure, “the fee applicant bears the burden of establishing entitlement to an award and documenting the 

appropriate hours expended and hourly rates.” Hensley v. 

Eckerhart, 461 U.S. 424, 437 (1983). Submission of invoices 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 application for noncompensable hours.” Gagnon v. United Technisource, 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 appeal from the Merit Systems Protection Board, the 

agency involved shall be liable to the employee, 

former employee, or applicant for reasonable attorney’s fees and any other reasonable costs incurred, regardless of the basis of the decision.

(emphases added).
8 RUMSEY v. DOJ

Courts routinely determine that reductions are necessary 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 unnecessary.’” 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 sanction order. The agency also argued that the records failed 

to sufficiently identify the subjects of certain tasks, meetings, 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 attorney’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 ‘excessive’ and that her invoices were ‘full of meritless, unrecoverable, 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 precedent. We have held that “[w]here documentation is 

inadequate, the district court is not relieved of its obligation 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 determined that the case was exceptional for the purposes of 

attorney’s fees under 35 U.S.C. § 285 but found the patentee’s showing to be deficient. We reversed one of the 

infringement findings on appeal and remanded for reconsideration of § 285. We noted that, as here, the “fee application 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 language of other statutes which are not specifically related, 

but which apply to similar persons, things, or relationships.” 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 provides 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 information (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 denial of all fees for Slavet’s representation. While Ms. Rumsey 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 regarding 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 attorney’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, determine 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 attorney’s fees for her other two lawyers or firms, which was 
RUMSEY v. DOJ 11

reduced by 60 percent, and concedes that a similar reduction 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 accept 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 proceeding . . . 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 successful in her claim for attorney’s fees for Slavet’s representation, 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.