for review of the Merit Systems Protection Board in No.
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.
NEWMAN, Dyk, and Stoll, Circuit Judges.
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 decision. We
conclude that Ms. Rumsey carried her burden of showing
entitlement to some award of attorney's fees.
Accordingly, we reverse and remand.
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
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
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.
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
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.
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- 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.
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.
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.
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-
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
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 ...