United States Department of Labor

Employees’ Compensation Appeals Board

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In the matter of D.B., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE,

Fort Collins, CO, Employer

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Docket No. 13-1355

Issued: March 1, 2021

Appearances: Case Submitted on the Record

John S. Evangelisti, Esq., for the appellant

Office of Solicitor, for the Director

ORDER GRANTING FEE PETITION

Before:

PATRICIA HOWARD FITZGERALD, Alternate Judge

COLLEEN DUFFY KIKO. Judge

JAMES A. HAYNES, Alternate Judge

Counsel for appellant has filed a fee petition in the amount of $7,928.75.

1

 The Board notes 

that all petitions for approval of fees for a representative’s services are considered under the 

Board’s statutory authority found at section 8127 of the Federal Employees’ Compensation Act2

(FECA) and under its Rules of Procedure found at 20 C.F.R. § 501.9(e).3

Pursuant to its regulations, the Board must consider the petition 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 regulation (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;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 No response was 

received.

The Board has carefully reviewed the fee petition, and finds that it satisfies the 

requirements of section 501.9(e) of the Board’s Rules of Procedure.

10

 The Board finds, however, 

that an attorney fee in the amount of $7,928.75 is not supported by the documentation attached in 

support of the petition. The petition seeks $1,005.00 in connection with work performed for the 

period from December 18 to December 31, 2012, which predates the March 4, 2013 decision of 

the Office of Workers’ Compensation Programs (OWCP) which is the basis for the appeal in this 

docket file. An additional $45.00 for work on January 14, 2013 also predates OWCP’s decision 

on appeal. As these fees in the amount of $1,050.00 are not related to fees for legal services for 

work before the Board, they are denied. Fees in the amount of $6,833.75 are supported by the 

documentation attached to the petition and shall be awarded.

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.”

11

 Under 18 

U.S.C. § 292, collecting a fee without the approval of the Board may constitute a misdemeanor, 

subject to fine or imprisonment up to one year, or both.

 

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 Supra note 3.

11 Id.
3

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

$6,833.75.

12

Issued: March 1, 2021

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Boar

 

12 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017. James A. Haynes, Alternate Judge, participated in the original decision, but was no 

longer a member of the Board effective November 16, 2015.