United States Department of Labor

Employees’ Compensation Appeals Board

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In the Matter of C.L., Appellant

and

DEPARTMENT OF AGRICULTURE, FOOD, 

SAFETY & INSPECTION SERVICE, 

Long Beach, CA, Employer

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Docket No. 16-0004

Issued: November 16, 2017

Appearances: Case Submitted on the Record

John S. Evangelisti, Esq., for the appellant

Office of Solicitor, for the Director

ORDER GRANTING ATTORNEY’S FEE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

Counsel for appellant has filed a fee petition in the amount of $3,205.00.1 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 Act,2

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

Pursuant to its regulations, 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 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).

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.
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(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 abovereferenced appeal. The underlying issue was an August 24, 2010 claim for recurrence of 

disability. By decision dated April 24, 2015, the Office of Workers’ Compensation Programs’

(OWCP) Branch of Hearings and Review affirmed an August 5, 2014 decision which denied 

appellant’s claim for recurrence finding that the evidence was insufficient to establish that 

appellant was disabled due to a material change or worsening of her work-related conditions. In 

a June 14, 2016 decision, the Board affirmed the April 24, 2015 OWCP decision. 

On appeal, counsel submitted a six-page brief contending that the evidence and argument 

submitted to OWCP had been sufficient to establish that appellant sustained a recurrence of 

disability as of August 24, 2010 based on the acceptance of new conditions. He addressed the 

usefulness of his services noting that the case was complex and dated back to 1983. Counsel 

noted that although not successful before the Board, appellant was advised that this was a 

difficult appeal. He discussed his communication with appellant during the representation before 

the Board and addressed the customary local charges for similar services. Counsel specifically 

addressed the hourly rates charged by the staff of his law firm, noting that they had been found 

reasonable in other administrative tribunals.

OWCP’s decision on appeal was dated April 24, 2015 and the appeal was filed with the 

Board on October 14, 2015. The fee petition requests approval of time from October 22, 2015 to 

June 15, 2016 and documents 16.25 hours spent in connection with this appeal before the Board 

 

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 counsel’s fee petition was a signed fee agreement from appellant. 
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at $200.00 per hour for John S. Evangelisti, Esq., and $50.00 per hour for Paralegal Jodi 

Waldron.

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 concludes that the fee 

requested is reasonable. 

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 

$3,205.00. 

Issued: November 16, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board