United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of S.N., Appellant 

and 

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS HEALTH ADMIISTRATION, 

Fresno, CA, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-0352 

Issued: November 28, 2016 

Appearances: Case Submitted on the Record 

Daniel M. Goodkin, Esq., for the appellant 

Office of Solicitor, for the Director

ORDER GRANTING FEE PETITION 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

Counsel for appellant has filed a fee petition in the amount of $1,361.50.1 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 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 considers fee petitions 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 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 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;7 and 

(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. By order dated August 1, 2014, the Board set aside OWCP decision dated 

June 17, 2013 which terminated appellant’s medical and wage-loss benefits for the accepted 

condition of urinary incontinence. The Board noted that, following a March 22, 2012 OWCP 

decision that terminated appellant’s benefits, counsel requested reconsideration and submitted 

additional medical evidence. In its June 17, 2013 decision, OWCP denied modification of the 

March 22, 2012 decision, but it did not consider one of the medical reports submitted by counsel. 

The Board remanded the case to OWCP to enable it to properly consider all the evidence 

submitted prior to the issuance of the June 17, 2013 decision. 

On appeal counsel had submitted the Application for Review (AB-1 Form) and a sixpage brief in which he had noted that OWCP erroneously relied upon the second opinion 

physician’s report in terminating appellant’s benefits for urinary incontinence. He argued that 

the second opinion was based on an inaccurate factual history and all physicians, including the 

second opinion physician, agreed that appellant’s bladder stone removal was related to treatment 

for urinary incontinence. 

On September 17, 2014 counsel submitted a fee petition. He submitted an itemized fee 

petition and the hourly charges for the individuals in the itemized statements. Counsel addressed 

the usefulness of his services noting that the case was complex. He also 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 

                                                             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 statement from appellant indicating 

that she found the requested fee to be reasonable and appropriate. 
3 

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 June 17, 2013 and the appeal was filed with the 

Board on December 10, 2013. The fee petition requests approval of time from December 9, 

2013 to August 18, 2014 and documents 4.5 hours spent in connection with this appeal before 

the Board at $525.00 per hour for Steven E. Brown, Esquire, $425.00 per hour for Daniel M. 

Goodkin, Esquire, and $195.00 per hour for Paralegals Erika Bauer and Jessica Gordon. 

In this regard, however, the Board finds excessive billing while the appeal was pending 

before the Board. In many cases, counsel included multiple billings by various staff members 

for “conference with attorneys (or w/attorney and paralegal) re: case status” or “review file for 

current status.” In each of these meetings, which appear on the average of every six weeks, 

generally two attorneys and a paralegal are in attendance and bill for their time collectively. 

Each attendee’s participation is described in the similar fashion. No rationale or justification for 

this redundant billing practice was offered. Absent a detailed explanation on how each particular 

conference, and each attendee, assisted appellant in furtherance of this appeal, the billed amounts 

for these status conferences are disallowed. The Board will disallow these 2.00 hours 

(December 18, 2013, January 21, February 21, March 19, April 16, May 21 and June 12, 2014) 

as excessive and redundant:11 

Daniel Goodkin .60@ $425.00 $ 255.00 

Steven Brown .70@ $525.00 $ 367.50 

Erika Bauer .30@ $195.00 $ 58.50 

Jessica Gordon .40@ $195.00 $ 78.00 

Total: 2.00 $ 759.00 

The Board has carefully reviewed the fee petition and finds it, as modified, otherwise 

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. 

                                                             11 While not directly pertaining to claims under FECA, the Board finds instructive the decision of the United 

States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983). In any fee petition, counsel must use billing 

judgment and exclude redundant or unnecessary hours and to confirm that the fee requested is not excessive. 

Adequate documentation should be submitted to support the hours of work performed with specificity or a 

reasonably precise description of the work performed on behalf of the client. See also W.J., Order Granting Fee 

Petition, Docket No. 08-2411 (issued August 25, 2014). 
4 

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

$602.50. 

Issued: November 28, 2016 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board