United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of M.F., Appellant 

and 

U.S. POSTAL SERVICE, DENVER 

PROCESSING & DISTRIBUTION CENTER, 

Denver, CO, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 08-1927 

Issued: April 19, 2017 

Appearances: Case Submitted on the Record

John S. Evangelisti, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER GRANTING FEE PETITION 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

Counsel for appellant has filed a fee petition in the amount of $25,597.50.1 The petition 

covered services performed from July 1, 2008 through November 3, 2011.2

 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 Act3

 (FECA) 

and under its Rules of Procedure found at 20 C.F.R. § 501.9(e).4

 

 1

 FECA (5 U.S.C. § 8127(b)) and the 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

 Although filed under Docket No. 11-1273, the fee petition pertained to services performed under three separate 

appeals, including the current appeal, Docket No. 08-1927. 

3

 5 U.S.C. § 8127. 

4

 20 C.F.R. § 501.9(e). 
2

Pursuant to its regulation, the Board considered the fee petition under the following 

criteria: 

(1) The usefulness of the Representative’s services;5 

(2) The nature and complexity of the appeal;6

 

(3) The capacity in which the Representative has appeared;7

 

(4) The actual time spent in connection with the Board appeal;8 and 

(5) Customary local charges for similar services.9

By order dated August 27, 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.10 No response was 

received.11

On September 29, 2014, counsel submitted a supplemental fee petition limiting the scope 

of the initial September 4, 2012 request and clarifying other aspects of the fee petition. The 

requested fees pertain to services performed before the Board in the above-referenced appeal, 

which involved an April 14, 2008 merit decision wherein the Office of Workers’ Compensation 

Programs (OWCP) denied wage-loss compensation beginning July 21, 2005. Appellant sought 

 5

 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. 

6

 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. 

7

 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. 

8

 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). 

9

 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. 

10 20 C.F.R. § 501.9(e). 

11 The September 4, 2012 fee petition was accompanied by an August 27, 2012 signed statement from appellant 

expressing his belief that the fees charged by counsel were reasonable. 
3

disability compensation due to his May 1, 1995 employment-related lumbar condition.12 His 

representative filed the appeal on July 1, 2008, and subsequently submitted a 15-page brief.13 

The Board issued its decision on April 16, 2009, which affirmed OWCP’s April 14, 2008 

decision. Counsel subsequently filed a petition for reconsideration, which the Board denied by 

order dated September 17, 2009. 

With respect to the current appeal, the fee petition requests approval of time from July 1 

through July 21, 2008 and May 15 through May 21, 2009, and documents 42.3 hours spent in 

connection with this appeal before the Board for a total of $9,682.50. Appellant’s lead counsel, 

John S. Evangelisti, Esq., billed his services (2.6 hours) at an hourly rate of $300.00.14 

Additionally, Christopher Lopez, Esq. billed his services (39.4 hours) at $225.00 per hour. A 

substantial portion of the hours billed were devoted to preparing the 15-page brief filed with the 

Board in July 2008. Counsel represented that he and appellant had entered into a written fee 

agreement. Appellant’s counsel also represented that the respective hourly rates he and cocounsel charged were both reasonable and customary, and had previously been approved in 

similar cases. 

Regarding the nature and complexity of the case, in his brief counsel raised a number of 

arguments with respect to the type of work appellant had performed prior to his July 2005 

retirement and whether he was capable of performing his date-of-injury position. The case also 

involved more than one employment injury. As to the usefulness of counsel’s services, he noted 

that he regularly apprised appellant of the status of his claim and kept him fully informed. And 

while counsel did not prevail before the Board in the instant appeal, he was ultimately successful 

in securing wage-loss compensation for appellant retroactive to July 22, 2005, which award 

exceeded $175,000.00. 

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

 12 Appellant has a separate emotional condition OWCP File No. xxxxxx905, which OWCP accepted for 

permanent aggravation of post-traumatic stress disorder (PTSD), with a November 5, 2003 date of injury. The case 

files with respect to appellant’s lumbar condition and PTSD have been combined under claim, File No. xxxxxx905. 

13 Counsel submitted his brief on July 24, 2008, which the Board received on July 29, 2008. 

14 There was an additional fee of $37.50 for preparing the July 1, 2008 appeal request (0.3 hours at $125.00/hr.), 

which bears the initials of R.B.. 
4

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

$9,682.50. 

Issued: April 19, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board