United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of J.A., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

TRANSPORTATION SECURITY 

ADMINISTRATION, Denver, CO, Employer 

__________________________________________ 

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Docket No. 09-1582 

Issued: December 29, 2014 

Appearances: Case Submitted on the Record 

John S. Evangelisti, Esq., for the appellant 

Office of Solicitor, for the Director

ORDER GRANTING FEE PETITION 

Before: 

COLLEEN DUFFY KIKO, Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

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

fourteen thousand, eight hundred and five dollars ($14,805.00).1

 By order dated April 2, 2014, 

the Board denied counsel’s request and allowed an additional 60 days for the submission of 

supplemental material information to review the request under the Board’s regulations at 20 

C.F.R. § 501.9. 

The requested fees pertain to services performed before the Board in the abovereferenced appeal. The Board’s April 21, 2010 decision found that the Office of Workers’ 

Compensation Programs (OWCP) had failed to properly terminate appellant’s wage-loss 

compensation due to his refusal to accept suitable work. The January 8 and May 20, 2009 

decisions of OWCP were reversed. 

The documents on appeal include a 21-page brief, with numerous attachments, 

addressing the issue on appeal. Counsel argued that OWCP had improperly terminated 

                                                             1

 The Federal Employees’ Compensation Act (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

appellant’s wage-loss compensation, that OWCP had failed to follow the procedural 

requirements for suitable work termination, that the selected position had been improperly 

withdrawn, and that physical requirements of the position exceeded appellant’s restrictions. He 

provided the procedural history of the case and cited to Board precedent, OWCP regulations, and 

the Federal (FECA) Procedure Manual in support of his arguments. Further, counsel 

distinguished Board cases cited by OWCP in support of its decision. As noted, the Board found 

that OWCP had failed to follow the proper procedural requirements for a suitable work 

termination and reversed the January 8 and May 20, 2009 decisions. 

By letter dated May 12, 2014, but received by the Board on September 15, 2014, counsel 

responded to the Board’s April 2, 2014 order providing additional information for consideration 

of the fee request pursuant to 20 C.F.R. § 501.9(e).2 He noted that a portion of the originally 

requested attorney’s fee was improper, from October 28, 2009 through December 1, 2009, as it 

was related to two Freedom of Information Act requests and not to counsel’s representation of 

appellant before the Board. Therefore, he reduced the fee request before the Board by $292.50 

to $14,512.50. 

Counsel noted that appellant did not contest the amount of the fee but failed to provide a 

signature of appellant noting his approval.3 He also noted that fees for work performed by 

OWCP are approved on a consistent basis. 4 Counsel addressed the usefulness of the 

representative services by submitting legal argument in the claim with citation to Board 

precedent that was found relevant to the issue on appeal. He noted that he was successful in his 

argument, as the Board reversed the suitable work termination. Counsel also addressed the time 

submitted in the fee petition on the case, in communication with appellant and addressed the 

customary local charges for similar services. He specifically addressed the hourly rates charged 

by the staff of his law firm in this appeal. 

The decisions on appeal before the Board were dated January 8 and May 20, 2009. The 

amount charged on July 27, 2009 for .30 for $90.00 was itemized for “draft reconsideration 

request.” As that would not be relevant to work before the Board, it is disallowed. Therefore, 

the amount of $90.00 of the requested attorney fees is disallowed. 

The Board notes that the bulk of the fees in this case (approximately 54 hours) are 

charged for the research and preparation of the 21-page brief. Counsel notes that he was 

successful in obtaining reinstatement of appellant’s wage-loss benefits, that the evidence, 

argument, and pleadings before the Board were well prepared and decisive in obtaining full 

                                                             2

 By order dated April 2, 2014, the Board provided counsel 60 days to supplement his fee petition. Counsel’s 

supplemental pleading was not received until September 15, 2014, well beyond the 60-day period. The Board, in its 

discretion, waives the 60-day time limit in this case and will hear counsel’s argument. 

3

 Counsel noted that the fee agreement was unsigned due to an oversight, but provided copies of appellant’s 

general releases for access to health and employment records. 

4

 20 C.F.R. § 10.703(b) and the Federal (FECA) Procedure Manual, Part 2 -- Claims, Representatives’ Services, 

Chapter 2.1200.6 (June 2012) pertain to uncontested fees for work performed before OWCP. The procedures 

implemented by OWCP with regard to the consideration of fees are separate from the Board’s review of such 

applications under 20 C.F.R. § 501.9(e). OWCP and the Board are two separate and distinct bodies and separate 

application to the Board is required for approval of a fee for legal or other services performed in connection with an 

appeal. Evelyn R. Adams, 10 ECAB 585 (1959). 
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relief. He further noted that despite the fact that the Board reversed the suitable work 

termination due to procedural deficiencies, the brief provided to the Board included all the 

relevant arguments raised on appeal. The Board has carefully reviewed counsel’s explanation of 

the amount of time drafting his brief and finds that the hours itemized for the preparation of the 

brief filed in this instance is justified. The Board notes, however, that FECA creates a nonadversarial process of claims adjudication and that such costly pleadings should be the exception 

rather than the rule. 

It is noted that the fee agreement signed by appellant did not reference work before the 

Board. In the future, such fee agreements should be specific as to the forum, the state where 

counsel is retained, hourly rates, and the specific legal work to be performed before which it is 

charging attorney fees. 

The Board also notes that it is difficult to ascertain the services for which fees are being 

charged when the document presented for approval includes fees for services in addition to those 

before the Board. It is requested that only the fees charged for work before the Board be 

included in the request to be approved by the Board. The Board strongly discourages counsel 

from submitting petitions with redactions, corrections, or additions because the Board is without 

knowledge of who made the changes or why they were made. 

The Board notes that counsel submitted a statement in support of his petition. The Board 

encourages counsel to affirm the accuracy of the information provided in their fee petitions as an 

indication that due care was taken in the preparation of the petition. 

The Board has reviewed the fee petition and additional information submitted by counsel 

and finds, with the above-noted exceptions, that it satisfies the requirements of section 501.9(e) 

of the Board’s implementing federal regulations. 
4

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

thousand, four hundred and twenty-two dollars and fifty cents ($14,422.50).5

Issued: December 29, 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 

                                                             5

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

Board effective December 27, 2014.