United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

In the Matter of N.D., Appellant

and

OFFICE OF SPECIAL COUNSEL, 

HEADQUARTERS, Washington, DC, Employer

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Docket No. 16-0823

Issued: February 3, 2020

Appearances: Case Submitted on the Record

Steven E. Brown, Esq., for the appellant

Office of Solicitor, for the Director

ORDER DENYING FEE PETITION

Before:

CHRISTOPHER J. GODFREY, Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

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

$2,717.50.

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 Act2(FECA) and under the Board’s Rules of Procedure found at 20 C.F.R. 

§ 501.9(e).3 

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

Id. at § 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.10

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

appeal. By decision dated September 22, 2015, the Office of Workers’ Compensation Programs 

(OWCP) found that appellant had not met her burden of proof to establish a stress-related condition 

in the performance of duty. By decision dated August 18, 2017, the Board affirmed the decision 

of OWCP. By order dated June 12, 2018, the Board denied appellant’s petition for reconsideration. 

On June 19, 2018 counsel provided a fee petition and a statement of service requesting 

approval of fees totaling $2,717.50.

The fee petition requests approval of time from September 15, 2017 through June 18, 2018

and documents 7.6 hours spent in connection with this appeal before the Board at $475.00 per hour 

for 1.8 hours for Daniel Goodkin, Esq., 2.5 hours at $550.00 per hour for Steven Brown, Esq., and 

2.5 hours at $195.00 per hour for Paralegal Jessica Duncan. Additionally, 0.8 hours of time were 

not charged. The fee petition described the specific services provided for the amount claimed.

On July 11, 2018, the Clerk of the Appellate Boards sent a letter of correspondence to 

appellant and provided a copy of the application for approval of an attorney’s fee. It noted that 

she was afforded an opportunity to comment upon the requested fee in the amount of $2,717.50. 

Appellant was afforded 30 days, until August 10, 2018 to respond to the Board. She did not file a 

response with the Clerk of the Boards. However, the Board notes that correspondence was 

received by the Clerk of the Appellate Boards on July 19, 2018. The correspondence states, 

 

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 representative’s fee petition was a Statement of Service and Fee Approval 

that contained a line for Appellant’s signature, to indicate her approval of the requested fee, but Appellant did not 

sign. 
3

“Appellant has not had a chance to thoroughly review the approval for attorney fee request but 

there should be no fees requested. This was discussed between she and the firm back in 

January 2018, per the following e-mail excerpts.” Attachments to the July 19, 2018 

correspondence noted that appellant exchanged e-mails on January 9, 2018 with counsel’s office

and his firm personnel noting disagreement with several billing practices for the firm’s work before 

the Board. The e-mails further suggest a breakdown in the attorney client relationship.

The Board, having considered the fee petition and supporting documentation, denies the 

fee petition. The Board finds that the petition provides insufficient information to allow approval 

of any portion of the amount claimed. The Board notes the following defects:

(1) Counsel provided the typical statement of service and fee approval dated 

June 19, 2018, but did not obtain appellant’s signature indicating her approval of 

the requested fee. This absence of a signature is unusual and indicates that appellant 

did not approve of the fee. 

(2) Counsel provided several e-mails detailing appellant’s dissatisfaction with the 

cost of her counsel’s representation, including notations as to several specific 

billing practices she found unreasonable. Again, the July 19, 2018 correspondence 

notes “... there should be no fees requested.” Under the third factor considered by 

the Board, the capacity of services, the Board must consider that appellant has at 

least had a chance to thoroughly review the fee request.

(3) A member of the firm’s statement that “no fees should be requested” indicates

that counsel is not seeking attorney’s fees or fees on behalf of the firm. This 

ambiguity must be cured. 

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 up to a year or both. 
4

IT IS HEREBY ORDERED THAT the fee petition in the amount of $2,717.50 is 

denied.

11

Issued: February 3, 2020

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

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

effective December 11, 2017 and did not participate in the preparation of this order.