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Rumsey v. Department of Justice

United States Court of Appeals, Federal Circuit

August 10, 2017


         Petition for review of the Merit Systems Protection Board in No. DC-1221-11-0466-A-1.

          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.

          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 decision. We conclude that Ms. Rumsey carried her burden of showing entitlement to some award of attorney's fees. Accordingly, we reverse and remand.


         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 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- 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- 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 ...

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