United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of S.K., Appellant 

and 

U.S. POSTAL SERVICE, AIR CARGO 

CENTER, Portland, OR, Employer 

__________________________________________ 

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Docket No. 15-0541 

Issued: August 9, 2016 

Appearances: Case Submitted on the Record

Thomas Flaherty, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER DENYING FEE PETITION 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

Counsel for appellant has filed a request for approval of attorney’s fee in the amount of 

three thousand five hundred dollars ($3,500.00). The Board notes that all petitions for approval 

of fees for representative services are considered under the Board’s Rules of Procedure and the 

applicable statute and regulation are found at 20 C.F.R. § 501.9.1

Under these regulations, the Board must consider the petition under the following general 

criteria: 

(1) The usefulness of the Representative’s services;2

(2) The nature and complexity of the appeal;3

                                                             1

 5 U.S.C. § 8127, 20 C.F.R. § 501.9(e). 

2

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

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

written pleadings filed in the case. The Board will also consider the usefulness of an attorney’s work as it aided the 

Board in its consideration and decision of the issue appealed. 

3

 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 attorney must establish the complex or 

unusual nature of the appeal. 
2

(3) The capacity in which the Representative has appeared;4

(4) The actual time spent in connection with the Board appeal;5

 and 

(5) Customary local charges for similar services.6

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.7 She submitted a 

letter dated March 24, 2016, indicating that she did not believe the requested attorney’s fee 

should be approved. Appellant indicated she had initially agreed to a flat fee of $5,000.00 for 

her case, which she thought would include the appeals process. She opined that she did not 

believe counsel had honestly documented the actual time spent on the appeal. 

The Board has considered the fee petition and finds that it should be denied. Counsel 

submitted a letter dated February 15, 2015 asserting that he agreed to represent appellant on the 

appeal for a flat fee of $3,500.00. He provided an accounting of time from December 13, 2014 

to September 30, 2015, for 9.75 hours at $275.00 per hour, for $2,681.25. Included in the 

accounting are conferences with another attorney, Lance Perdue. As the Board has indicated, 

counsel must provide a detailed explanation as to how such conferences assisted appellant in the 

furtherance of this appeal.8

 He also submitted a February 19, 2015 invoice from Lance Perdue, 

for undated legal services in the amount of $1,755.00, without providing additional explanation. 

The fee argument did not reference any work before the Board and was executed before 

the final OWCP decision has issued. In the future, all such fee arguments should be specific as 

to the forum, the state when counsel is retained, hourly rates, and the specific legal work 

performed. 

The fee petition submitted fails to properly explain in detail how the claimed fee is 

justified under the five factors listed above. There is no discussion as to the nature and 

complexity of the appeal, detailed explanation of the time spent in connection with the appeal, or 

the fee claimed. Appellant has raised concerns regarding the fee petition that have not been 

addressed, and there is insufficient supporting documentation to grant the fee petition under 

5 U.S.C. § 8127 and 20 C.F.R. § 501.9(e). 

 

                                                             4

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

the attorney obtained a written retainer and fee agreement. 

5

 The Board’s evaluation of an attorney’s 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 counsel 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). 

6

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

and that local custom must be balanced against national practice in the Federal Employees’ Compensation Act 

appeals. 

7

 20 C.F.R. § 501.9(e). 

8 J.D., Docket No. 13-067, order granting fee petition (issued April 28, 2016)(the billed amount of unexplained 

conferences with attorneys and paralegals was disallowed) 
3

IT IS HEREBY ORDERED THAT the fee petition is denied and may be resubmitted to 

the Board within 60 days of the date of this order. 

Issued: August 9, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board