United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of J.W., Appellant 

and 

NATIONAL AERONAUTICS & SPACE 

ADMINISTRATION, GODDARD SPACE 

FLIGHT CENTER, Greenbelt, MD, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-0825 

Issued: November 7, 2016 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER GRANTING FEE PETITION 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

Counsel for appellant has filed a fee petition in the amount of $966.50.1 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

 

 

                                                             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). 
2

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

criteria: 

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

(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. 

The requested fees pertain to services performed before the Board in the abovereferenced appeal. The underlying merit issue was whether appellant met his burden of proof to 

establish that a September 4, 2012 right femur fracture occurred in the performance of duty. By 

decision dated November 30, 2012, OWCP denied appellant’s claim, finding that he was not in 

the performance of duty when injured. On February 21, 2014 it denied his reconsideration 

request without conducting a merit review. In a decision dated September 5, 2014, the Board 

found that OWCP improperly denied merit review and remanded the case to OWCP to review of 

the merits of appellant’s claim under OWCP’s regulations.9

On appeal counsel submitted an application for review (AB-1 form) in which he 

addressed the factual history of the case and presented Board precedent addressing the 

requirements for merit review. He argued that he had presented a new legal argument with his 

request for reconsideration before OWCP, and that OWCP had not addressed this argument in its 

February 21, 2014 decision. 

                                                             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. 

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 FECA appeals. 

9

 20 C.F.R. § 10.606(b)(3). The record indicates that appellant died on February 20, 2015. Subsequent to the 

Board’s decision, on July 30, 2015 OWCP accepted right closed fracture of the lower end of femur. 
3

On September 25, 2014 counsel provided a fee petition and statement of service before 

the Board. 

OWCP’s decision on appeal was dated February 21, 2014 and the appeal was filed with 

the Board on February 28, 2014. The Board issued its decision on September 4, 2014. The fee 

petition requests approval of time from February 27 through September 5, 2014 and documents 

2.90 hours spent in connection with this appeal before the Board at $425.00 an hour for 

Daniel M. Goodkin, Esq., $525.00 an hour for Steven E. Brown, Esq., and $195.00 per hour for 

Paralegal Erika Bauer. The fee petition described the specific services provided for the amount 

claimed. 

In this regard, however, the Board finds excessive billing while the appeal was pending 

before the Board. The fee petition reflects charges on May 7, 2014 described as “call from other 

attorney re ECAB case status (gave him an update),” on July 9, 2014 “call from other attorney re 

ECAB still pending,” and on July 11, 2014 “call from other attorney re requesting specific info 

about ECAB case.” No rationale or justification for these charges was offered. Absent a 

detailed explanation on how each particular telephone call and each participant assisted appellant 

in furtherance of this appeal, the billed amounts for these telephone calls are disallowed. The 

Board will disallow the 0.40 hours (May 7, July 9, and July 11, 2014) as excessive and 

redundant:10 

Daniel Goodkin 0.30@ $425.00 $ 127.50 

Erika Bauer 0.10@ $195.00 $ 19.50 

Total: 0.40 $ 147.00 

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 

$819.50.11

Issued: November 7, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             11 Michael E. Groom, Alternate Judge, participated in the preparation of the decision, but was no longer a member 

of the Board effective December 27, 2014 and did not participate in the preparation of this order.