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November 6, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Harriett R. Taylor, Trial Judge.

Ferren, Schwelb and Farrell, Associate Judges.

The opinion of the court was delivered by: Schwelb

The question presented is whether counsel fees may be awarded to an employee, whom the District of Columbia hired after January 1, 1980, and who has successfully contested an adverse personnel action against him before the Office of Employee Appeals (OEA) and the Superior Court. We hold that they may.


On June 21, 1981, appellant Vartan Zenian began his employment as a financial auditor with the Office of the D.C. Auditor. On January 4, 1985, he was dismissed for alleged inefficiency, insubordination, and dishonesty. *fn1 He filed a timely appeal with the OEA. On September 30, 1986, almost twenty-two months later, an OEA hearing examiner found that Mr. Zenian had engaged in insubordination, but held in Mr. Zenian's favor with regard to the allegations of inefficiency and dishonesty. The hearing examiner ruled that the appropriate sanction was a five-day suspension. Neither Mr. Zenian nor the Auditor filed a petition for review with the OEA, and the decision became final on October 16, 1986.

The Auditor appealed the OEA's decision to the Superior Court and, on February 10, 1987, Judge Eugene Hamilton affirmed it. Mr. Zenian was ordered reinstated and awarded back pay for the period that he was unemployed.

Mr. Zenian then requested the OEA to award him $16,439.90 in counsel fees. On, September 22, 1989, the hearing examiner declined to make such an award, holding that she lacked statutory authority to do so. She relied on Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975) and Launay v. Launay, 497 A.2d 443 (D.C. 1985). On September 21, 1989, *fn2 the Board issued an order stating simply that "Employee's request for attorney fees is denied."

Mr. Zenian next sought review of the OEA's decision in the Superior Court. On July 16, 1990, that court issued a written Memorandum Opinion and Order affirming the OEA's decision. The Judge held that she had no statutory authority to award counsel fees, and was constrained from making such an award by the "American Rule" as applied in our then very recent decision in Schlank v. Williams, 572 A.2d 101, 108 (D.C. 1990). Citing Freeman v. District of Columbia Dep't of Employment Servs., 568 A.2d 1091, 1093 (D.C. 1990), the Judge also held that the OEA's decision was neither plainly erroneous nor otherwise contrary to established legal doctrine. This appeal followed.


The rights of District of Columbia employees in personnel actions arising out of their employment are governed by the Comprehensive Merit Personnel Act (CMPA), D.C. Code §§ 1-601.1 to 1-637.2 (1987). The CMPA was designed to replace an existing personnel system which was said to be in "disarray" and "chaos" -- an "'inefficient hodge-podge system ignored the rudimentary merit rules' and 'awkwardly meshed' the District personnel apparatus with the federal personnel system." District of Columbia v. Thompson, 593 A.2d 621, 632 (D.C. 1991) (quoting COUNCIL OF THE DISTRICT OF COLUMBIA, DISTRICT OF COLUMBIA COMPREHENSIVE MERIT PERSONNEL ACT OF 1978, COMM. REPORT ON BILL NO. 2-10, at 26 (July 5, 1978)) (insertions in original). The state of the law under the CMPA, however, has yet to become a model of luminous clarity.

Prior to the effective date of the CMPA, *fn3 the Federal Back Pay Act (FBPA), now codified at 5 U.S.C. § 5596 (1988), applied to all employees of the District of Columbia government. Id. § 5596 (a)(5); District of Columbia v. Hunt, 520 A.2d 300, 302-03 (D.C. 1987) (Hunt I). *fn4 The CMPA purported to supersede the FBPA as to District employees. *fn5 Insofar as this attempted supersession applied to employees hired prior to January 1, 1980, it ran afoul of the Home Rule Act, D.C. Code § 1-242(3) (1987), which "provides a floor for benefits under the [C.M.P.A.], equal to those applicable to federal employees immediately prior to enactment of District personnel legislation." Hunt I, supra, 520 A.2d at 303 (citation and internal quotation marks omitted); see American Fed'n of Gov't Employees v. Barry, 459 A.2d 1045, 1049 (D.C. 1983).

The critical development in this case, ignored by the hearing examiner, the OEA, and for all practical purposes by the trial court, is that effective March 4, 1981, the CMPA was amended by D.C. Law 3-130, 1979-1980 D.C. Stat. 544, now codified at D.C. Code § 1-612.4 (1987). Law 3-130 requires the Mayor to develop a new compensation system for all employees in the Career and Excepted Services. D.C. Code § 1-612.4 (a) (1987). The statute further directs, subject to a proviso not here relevant, that

until such time as a new compensation system is approved, the compensation system, including the salary and pay schedules, in effect on ...

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