United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of T.M., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Denver, CO, Employer 

__________________________________________ 

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Docket No. 12-1651 

Issued: April 21, 2017 

Appearances: Case Submitted on the Record

John S. Evangelisti, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER GRANTING FEE PETITION 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

Counsel for appellant has filed a fee petition in the amount of $4,200.00.1 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 Id. at § 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

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 August 2, 2013, the Board affirmed the February 1, 2012 

decision of OWCP. The Board found that OWCP properly suspended appellant’s compensation 

benefits due to her failure to attend a scheduled medical examination. Further, the Board 

affirmed as modified a February 2, 2012 OWCP decision, finding that appellant’s claim for a 

recurrence of disability was precluded under the suspension provision of section 8123(d) of 

FECA. 

On appeal appellant’s counsel submitted a 10-page brief in support of the appeal, citing 

pertinent case law in support of his arguments. Counsel argued that OWCP had failed to follow 

its own procedures when denying appellant’s claim for a recurrence. He provided a factual 

history of the claim and offered alternative arguments in support of his position. Counsel argued 

that OWCP improperly selected its referee physician and failed to properly consider the medical 

evidence submitted by appellant’s attending physician regarding the effects of her 

temporomandibular joint (TMJ) condition. 

The appeal in this case was filed July 27, 2012 and the Board’s decision was dated 

August 2, 2013. The dates of services rendered were September 3 through October 2, 2012 and 

August 14 and 27, 2013. 

OWCP’s decisions on appeal were dated February 1 and 2, 2012 and the appeal was filed 

with the Board on July 27, 2012. The fee petition requests approval of time from September 3, 

2012 through August 27, 2013 and documents 18.5 hours spent in connection with this appeal 

                                                             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

before the Board at $300.00 per hour for John S. Evangelisti, Esquire, and $225.00 per hour for 

Christopher Lopez, Esquire. 

In this regard, however, the Board finds excessive billing after the appeal was before the 

Board. The 0.3 total hours of legal services rendered by Mr. Evangelisti on August 14 and 27, 

2013 were not spent in connection with this appeal before the Board. The description of services 

for August 14 and 27, 2013 include writing a letter “to Claims Examiner re: willing to attend 

referee exam” and reviewing and responding to appellant’s e-mail regarding the status of her 

OWCP claim. Moreover, the Board’s decision was issued on August 2, 2013 and the dates of 

Mr. Evangelisti’s legal services are August 14 and 27, 2013. 

The Board finds that these are improper billing charges. The billed amounts for the letter 

and e-mails are disallowed. The Board will disallow 0.3 hours on August 14 and 27, 2013:10 

John S. Evangelisti .30@ $300.00 $ 90.00 

The Board has carefully reviewed the fee petition and finds it, as modified, otherwise 

satisfies the requirements of section 501.9(e) of the Board’s implementing regulations. 

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 18 

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

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

                                                             10 While not directly pertaining to claims under FECA, the Board finds instructive the decision of the United 

States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983). In any fee petition, counsel must use billing 

judgment and exclude redundant or unnecessary hours and to confirm that the fee requested is not excessive. 

Adequate documentation should be submitted to support the hours of work performed with specificity or a 

reasonably precise description of the work performed on behalf of the client. 
4

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

$4,110.00. 

Issued: April 21, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board