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United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

B.S, Appellant 

and 

OFFICE OF PERSONNEL MANAGEMENT, 

FEDERAL INVESTIGATIONS DIVISION, 

Denver, CO, Employer 

__________________________________________ 

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Docket Nos. 10-2343 & 

10-2390 

Issued: May 6, 2014 

Appearances: Oral Argument February 24, 2011

John S. Evangelisti, Esq., for the appellant 

Office of Solicitor, for the Director

ORDER DENYING ATTORNEY’S FEE 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

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

five thousand, one hundred and twenty dollars ($5,120.00). He filed the request under the Office 

of Workers’ Compensation Programs’ Rules of Procedure, pursuant to 20 C.F.R. § 10.703 and 

noted that, as appellant was in agreement with the fees, the application was “deemed approved.” 

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

 There is no option for the fees to be “deemed approved” under the 

Board’s regulations. 

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

criteria: 

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

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

(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

 No response was 

received. 

The Board, having considered the fee petition and supporting documentation, denies the 

fee petition. The Board finds that the petition provides insufficient information to allow 

approval of any portion of the amount claimed. The Board notes the following defects:8

(1) The fee petition does not adequately delineate the services performed relative 

to the particular appeal(s) before the Board. Persons identified in the itemized 

statement provided to the Board were not identified by name. Discrete, listed 

services billed separately were not adequately described. 

(2) The fee petition fails to explain in detail how the claimed fee is justified under 

the five factors listed in this order. 

 

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 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. 

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

 This list is intended to assist counsel but does not limit the Board’s discretion to evaluate any future fee petition 

on its own merits. 
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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: May 6, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board