United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of J.S., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE 

Norwich, NY, Employer 

________________________________________ 

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Docket No. 11-1772 

Issued: April 28, 2016 

Appearances: Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER GRANTING FEE PETITION 

Before: 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

Counsel for appellant filed a fee petition in the amount of $8,520.00.1 The Board notes 

that all petitions for approval of fees for representative’s services are considered under the 

Board’s statutory authority found at section 8127 of the Federal Employees’ Compensation Act,2

(FECA) and under its Rules of Procedure found at 20 C.F.R. § 501.9(e).3

Pursuant to its regulation, the Board considered the fee petition under the following 

criteria: 

(1) The usefulness of the Representative’s services;4

 

 1

 FECA (5 U.S.C. § 8127(b)) and its implementing regulations (20 C.F.R. § 501.9) clearly require the Board to 

review each fee petition on its own merits and with regard to the unique facts and issues of each appeal. The 

recognition that each appeal to the Board has unique aspects is reflected in the Board’s orders granting or denying 

fee petitions. 

2

 5 U.S.C. § 8127. 

3

 20 C.F.R. § 501.9(e). 

4

 The Board’s consideration of “usefulness” includes, but is not limited to, the frequency and quality of 

communication by the representative with the client, the factual evidence and legal argument offered and written 

pleadings filed in the case. The Board will also consider the usefulness of a representative’s work as it aided the 

Board in its consideration and decision of the issue appealed. 
2

(2) The nature and complexity of the appeal;5 

(3) The capacity in which the Representative has appeared;6 

(4) The actual time spent in connection with the Board appeal;7 and 

(5) Customary local charges for similar services.8

The requested fee allegedly pertained to services performed before the Board in the 

above-referenced appeal but was dated August 20, 2011. The appeal in this case was dated 

July 28, 2011 and the Board’s decision was dated March 21, 2012. The fee petition was dated 

August 20, 2011 but that date had been marked through by hand and a date of February 7, 2014 

had been written across the top of the page. 

By letter dated November 3, 2014, the Clerk of the Board advised counsel that the fee 

petition he had submitted was insufficiently detailed and ambiguous prohibiting the Board from 

rendering a reasoned decision. Counsel was provided thirty (30) days to submit a complete fee 

petition. A revised fee petition was submitted to the Board by counsel on November 24, 2014, 

providing clarification as to the date of the fee petition, the amount of the fees charged, and 

clarifying which fees were associated with representation of appellant before the Board. 

As required by the Board’s regulations, appellant has been afforded written notice of the 

fee requested and provided an opportunity to comment on the fee petition. No response was 

received.9

The requested fees pertain to services performed before the Board in the abovereferenced appeal. In its decision dated March 21, 2012, the Board affirmed the February 1, 

2011 decision of OWCP. The Board found that appellant had not met her burden of proof to 

establish a recurrence of a medical condition on June 18, 2009 or a recurrence of disability on 

August 11, 2009 causally related to her previously accepted employment injury. The Board 

remanded the case, however, for further development as to whether appellant had sustained a 

new occupational injury. Counsel noted that as a result of his efforts on behalf of appellant, 

OWCP eventually accepted appellant’s serious injuries. 

On appeal appellant’s counsel submitted an eight-page brief with supporting legal 

citation in support of his appeal, citing pertinent case law in support of his arguments. He argued 

 5

 The Board’s evaluation of the “nature and complexity” of an appeal includes, but is not limited to, whether the 

issue appealed is novel or required extensive or unusual factual evidence or legal argument. The Board recognizes 

that not all complex issues are cases of first impression. However, the representative must establish the complex or 

unusual nature of the appeal. 

6

 The Board’s consideration of the “capacity” in which a representative appears includes, but is not limited to, 

whether the representative obtained a written retainer and fee agreement was obtained. 

7

 The Board’s evaluation of an itemized statement of work and charges includes, but is not limited to, whether the 

statement is clear, detailed, and describes those aspects of the appeal which merit the fee claimed and whether the 

representative has personally affirmed the correctness of the fee. No stipulated or contingent fee will be approved 

by the Board. 20 C.F.R. § 501.9(e). 

8

 The Board’s consideration of customary, local fees recognizes that representatives often have clients in several 

states and that local custom must be balanced against national practice in the FECA appeals. 

9

 The Board notes that included with the representative’s fee petition was a signed statement from appellant 

indicating that she agreed with the requested fee for services rendered. 
3

that OWCP had failed to follow its own procedures when denying appellant’s claims for 

recurrence. Counsel provided a factual history of the claim and offered alternative arguments in 

support of his position. He argued that appellant’s current claim should have been combined 

with her previous claims, citing to the Office of Workers’ Compensation Programs (OWCP) 

procedures and Board precedent, and he also argued procedural defects in the OWCP decision. 

OWCP’s decision on appeal was dated February 1, 2011 and the appeal was filed with 

the Board on July 28, 2011. The fee petition requests approval of time from July 28, 2011 

through March 30, 2012 and documents 21.3 hours spent in connection with this appeal before 

the Board at $400.00 per hour for counsel. 

The Board has reviewed the fee petition and finds that it satisfies the requirements of 

section 501.9(e) of the Board’s implementing regulations. The Board after review of the petition 

concludes that the fee requested is reasonable. 

The Board notes that under 20 C.F.R. § 501.9(e) “[n]o claim for a fee for legal or other 

service performed on appeal before the Board is valid unless approved by the Board.” Under 19 

U.S.C. § 292, collecting a fee without the approval of the Board may constitute a misdemeanor, 

subject to fine or imprisonment up to a year or both. 

IT IS HEREBY ORDERED THAT the fee petition is granted in the amount of 

$8,520.00.10

Issued: April 28, 2016 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 10 James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective November 16, 2015 and did not participate in the preparation of this order.