by Mark Wilson

The United States Court of Appeals for the District of Columbia (D.C.) Circuit reversed a lower court’s refusal to grant attorney’s fees in a whistleblower action.

Elissa Rumsey works for the United States Department of Justice (DOJ), as a compliance monitoring coordinator for the Office of Juvenile Justice and Delinquency Prevention (OJJDP). Rumsey protested what she believed to be improper grant-making decisions. She disclosed to the media and members of Congress that she believed OJJDP failed to ensure compliance with grant terms and had covered up a grantee’s submission of fraudulent data. Rumsey also filed an inspector general complaint about the fraud.

Congress investigated the disclosures of Rumsey and other whistleblowers. Members of Congress specifically recognized Rumsey’s efforts in bringing corrective legislative action to the problem.

Rumsey eventually filed a whistleblower retaliation complaint with the Office of Special Counsel. She claimed that OJJDP improperly gave her low performance ratings, moved some of her job duties to other employees and canceled her telework agreement. She then filed an individual right of action appeal with the Merit Systems Protection Board in 2011, but an administrative judge denied corrective action.

On appeal, the board reversed in October 2013, ordering corrective action with respect to Rumsey’s performance rating and telework agreement. Rumsey then moved for an award of attorney’s fees for all three lawyers or firms who represented her during the whistleblower proceedings.
One of those lawyers was Beth Slavet, a federal employment law and whistleblowing expert. She had more than 25 years of experience, including more than seven years of combined service as a member, vice chairperson, and chairperson of the board. Slavet was Rumsey’s principal lawyer from October 2008 until November 2011, which included the filing of the Office of Special Counsel complaint and the individual right of action appeal.
Rumsey initially sought reimbursement of $87,000 she had already paid Slavet. At that time, Rumsey and Slavet were engaged in a fee dispute, with Slavet claiming that Rumsey owed her an additional $145,000. Rumsey asserted that the fees were excessive and the parties submitted to fee dispute arbitration.

The administrative law judge awarded fees for Rumsey’s other two lawyers but denied all attorney fees for Slavet’s work, finding that Rumsey failed to show the fees were reasonable.

The judge found Slavet’s invoices were “cursory, vague, and confusing.” The judge also noted that it had previously observed numerous deficiencies in Slavet’s representation, including the submission of “many redundant, rambling and repetitive pleadings,” her “repeated failure to meet filing deadlines and repeated inability to submit complete filings,” and a “pattern of disregarding deadlines.” The judge had previously sanctioned Rumsey for Slavet’s failure to respond to OJJDP’s discovery request and an order compelling a response.

Rumsey and Slavet settled their fee dispute on March 19, 2015. Rumsey ultimately agreed to pay $120,000 of the outstanding $145,445.09 in fees.
The Board affirmed the administrative law judge’s denial of Slavet’s attorney’s fees. It concluded that Rumsey failed to carry her burden of showing the fees were reasonable.

The D.C. Circuit reversed, finding that Rumsey carried her burden of showing entitlement to some award of attorney’s fees. “The Board’s approach is not consistent with our precedent,” the Court observed, in concluding that there was “no basis for denying attorney’s fees in their entirety.”

See: Rumsey v. Department of Justice, F3d (D.C. Cir. 2017).

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