United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of J.D., Appellant 

and 

DEPARTMENT OF THE NAVY, LEMOORE 

NAVAL AIR BASE, San Diego, CA, Employer 

__________________________________________ 

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Docket No. 13-0627 

Issued: April 28, 2016 

Appearances: Case Submitted on the Record 

Steven E. Brown, Esq., for the appellant 

Office of Solicitor, for the Director

ORDER GRANTING FEE PETITION 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

Counsel for appellant has filed a fee petition in the amount of $5,225.50.1 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

Pursuant to its regulations, the Board considers fee petitions under the following general 

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

By order dated December 11, 2014, the Board denied counsel’s fee petition as it had 

failed to adequately delineate the services performed and otherwise failed to explain in detail 

how the claimed fee was justified under the five factors listed above. Counsel was permitted 60 

days to resubmit the fee petition. 

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.9

 No response was 

received.10

The requested fees pertain to services performed before the Board in the abovereferenced appeal. By decision dated July 17, 2013, the Board affirmed the OWCP January 9, 

2013 denial of appellant’s claim, finding that the medical evidence was insufficient. Counsel 

filed a petition for reconsideration with the Board on July 29, 2013 which was denied on 

May 16, 2014. The underlying issues were whether appellant had established permanent 

impairment of a scheduled member, whether the accepted conditions should be expanded to 

include dementia, and whether appellant had established total disability on or after December 19, 

2011 due to accepted work conditions. 

On appeal counsel had submitted the Application for Review (AB-1 Form) on which he 

had noted that the hearing representative had ignored all the evidence presented by counsel that 

the wage-earning capacity decision had been based on a makeshift position. In the petition for 

reconsideration, he submitted a four-page brief further arguing the makeshift nature of the wageearning capacity decision, that the work restrictions provided by appellant’s treating physician 

were not prophylactic in nature and prevented appellant from performing his position, and that 

the medical reports established disability as of December 19, 2011. 

                                                             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

 20 C.F.R. § 501.9(e). 

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

that she found the requested fee to be reasonable and appropriate. 
3 

On October 28, 2014 counsel provided a supplemental fee petition addressing the 

deficiencies previously noted by the Board. He clarified the events listed in the itemized fee 

petition and the hourly charges for the individuals in the itemized statements. Counsel addressed 

the usefulness of his services noting that the case had some complexity complex and that, 

although he was unsuccessful on his argument to the Board, the claim was being pursued again 

before OWCP based on newly-discovered evidence. He also discussed his communication with 

appellant during the representation before the Board and addressed the customary local charges 

for similar services. Counsel specifically addressed the hourly rates charged by the staff of his 

law firm, noting that they had been found reasonable in other administrative tribunals. 

OWCP’s decision on appeal was dated January 9, 2013 and the appeal was filed with the 

Board on January 22, 2013. The fee petition requests approval of time from January 14, 2013 

through May 27, 2014 and documents 13.7 hours spent in connection with this appeal before the 

Board at $525.00 per hour for Steven E. Brown, Esquire, $425.00 per hour for Daniel M. 

Goodkin, Esquire, and $195.00 per hour for Paralegal Erika Bauer. 

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

before the Board. In many cases, counsel included multiple billings by various staff members 

for “conference with attorneys (or w/attorney and paralegal) re: case status” or “review file for 

current status.” In each of these meetings, which appear on the average of every six weeks, 

generally two attorneys and a paralegal are in attendance and bill for their time collectively. 

Each attendee’s participation is described in the similar fashion. No rationale or justification for 

this redundant billing practice was offered. Absent a detailed explanation on how each particular 

conference, and each attendee, assisted appellant in furtherance of this appeal, the billed amounts 

for these status conferences are disallowed. The Board will disallow these 2.60 hours (May 8, 

August 14, and October 24, 2013 and January 7 and April 3, 2014) as excessive and redundant:11 

Daniel Goodkin 1.50@ $425.00 $ 637.50 

Steven Brown .50@ $525.00 $ 262.50 

Erika Bauer .60@ $195.00 $ 117.00 

Total: 2.60 $1,017.00 

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. 

                                                             11 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 

$4,208.50.12

Issued: April 28, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

                                                             12 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.