United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

In the Matter of S.S., Appellant

and

DEPARTMENT OF THE ARMY, ARMY 

NATIONAL GUARD, Montgomery, AL, 

Employer

__________________________________________

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Docket No. 15-0958

Issued: December 14, 2017

Appearances: Case Submitted on the Record

Linda Benson, Esq., for the appellant

Office of Solicitor, for the Director

ORDER GRANTING FEE PETITION

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

Counsel for appellant has filed a fee petition in the amount of $962.67.1 The Board notes 

that all petitions for approval of fees for representative’s services performed before the Board 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 regulations, the Board considered the petition under the following general 

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;7and

(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.9 

The requested fees pertain to services performed before the Board in the abovereferenced appeal. The underlying issue was whether OWCP properly found an overpayment in 

the amount of $24,599.22 and whether OWCP properly denied waiver of the overpayment. By 

decision dated October 7, 2014, an OWCP hearing representative affirmed the finding of an 

overpayment and denial of waiver. By decision dated July 13, 2015, the Board affirmed the 

October 7, 2014 decision.

OWCP’s decision on appeal was dated October 7, 2014 and the appeal was filed with the 

Board on March 25, 2015. On July 24, 2015 counsel provided a fee petition and a statement of 

service requesting approval of fees totaling $962.67. The fee petition requests approval of 

services from December 4, 2014 to July 22, 2015, for 5.07 hours at $185.00 per hour.

The Board notes that for July 22, 2015 counsel included a fee of $24.72 for mail expense. 

This is considered a matter between counsel and a client that is not within the purview of the 

 

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 by the

representative 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.

7 The Board’s evaluation of a representative’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). 

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 Federal Employees’ Compensation Act 

appeals. 

9

20 C.F.R. § 501.9(e). Appellant did not respond to an August 20, 2015 letter requesting comment regarding the 

fee application. 
3

Board. Counsel also noted .42 hours of proofreading the fee petition on July 22, 2015. This 

claimed fee does not pertain to counsel’s furtherance of the appeal before the Board. Therefore 

the Board will disallow the $77.70 fee for proofreading the fee petition. 

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

satisfies the requirements of 20 C.F.R. § 501.9(e). The Board will therefore approve the fee in 

the amount of $860.25. 

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.

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

$860.25.

10

Issued: December 14, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

10 Colleen Duffy Kiko, Judge, participated in the preparation of the order, but was no longer a member of the 

Board effective December 11, 2017.