United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

In the Matter of J.A., Appellant

and

DEPARTMENT OF THE AIR FORCE, 

AIR EDUCATION & TRAINING COMMAND, 

Denver, CO, Employer

__________________________________________

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Docket Nos. 11-2061, 

12-1793, and 14-1863

Issued: December 18, 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

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

Counsel for appellant filed a fee petition for each of the three above-referenced appeals in 

the total amount of $12,857.50.1 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

 

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).
2

Under these regulations, the Board must consider the petition under the following general 

criteria:

(1) The usefulness of the Representative’s services;4

(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

By order dated December 28, 2016, the Board denied counsel’s prior fee petition as it had 

failed to adequately delineate the services performed for the three above-referenced appeals 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(s).

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 requested fees pertain to services performed before the Board in the three abovereferenced appeals.

In a March 24, 2011 decision, the Office of Workers’ Compensation Programs (OWCP) 

found that appellant had forfeited his entitlement to wage-loss compensation appellant received 

between March 1, 1992 and June 15, 2006 due to his failure to report his self-employment 

activities on various EN1032 forms.10 On September 15, 2011 counsel filed a timely application 

 

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.

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 In an April 20, 2011 letter, OWCP advised appellant of its preliminary determination that he had received a 

$429,961.37 overpayment of compensation for the period March 1, 1992 to June 15, 2006, which was caused by the 

forfeiture of compensation for that period.
3

for review of OWCP’s March 24, 2011 decision and filed a brief with the Board on 

October 18, 2011. By order dated July 16, 2012, the Board dismissed appellant’s appeal because 

the forfeiture issue appealed to the Board was in an interlocutory posture.11 It noted that, on 

August 4, 2011, an OWCP hearing representative had remanded the case to OWCP for further 

development regarding the forfeiture and overpayment, to be followed by a new decision.

In a June 12, 2012 decision, an OWCP hearing representative found an overpayment of 

compensation in the amount of $382,003.56 and that he was at fault in the creation of the 

overpayment, thereby precluding waiver of recovery of the overpayment. On August 24, 2012 

counsel filed a timely application for review of OWCP’s June 12, 2012 decision and filed a brief 

with the Board on November 6, 2012. By decision dated May 7, 2013, the Board set aside 

OWCP’s June 12, 2012 decision and remanded the case to OWCP for further development. The 

Board found that its June 12, 2012 decision did not contain detailed facts and findings regarding

the forfeiture, i.e., the presumed basis for the overpayment, and that therefore it was premature to 

consider whether OWCP had properly found an overpayment of compensation and whether 

appellant was at fault in the creation of such an overpayment. The Board directed OWCP to 

issue an appropriate decision on the forfeiture and overpayment matters.12

In a June 4, 2014 decision, OWCP found that appellant forfeited his entitlement to

compensation for the periods March 1, 1992 to July 19, 1995, May 16, 1996 to July 16, 1997,

and May 1, 1998 to June 15, 2006. It also found that appellant received an overpayment of 

compensation in the amount of $382,003.58 and that he was at fault in the creation of the 

overpayment, thereby precluding recovery of waiver of the overpayment. On August 21, 2014 

appellant, through counsel, filed a timely application for review of OWCP’s June 4, 2014 

decision and a 17-page brief which presented the factual history of the case and provided Board 

precedent regarding the forfeiture and overpayment issues. He argued that OWCP’s forfeiture 

determination was not warranted because appellant had not knowingly failed to report income or 

employment activities. By decision dated July 7, 2015, the Board affirmed in part the June 4, 

2014 forfeiture decision, but modified the decision to reflect a shorter period than that 

determined by OWCP.13 The Board remanded the case to OWCP for further action.

On January 24, 2017 counsel filed an updated fee petition for each of the three abovereferenced appeals in the total amount of $12,857.50. He addressed the usefulness of his 

services noting that his efforts before the Board brought relief for appellant. Counsel addressed 

the hourly rates charged by himself, his associate, and his paralegal, noting that they had been 

found reasonable in other administrative tribunals.

 

11 Docket No. 11-2061 (issued July 16, 2012).

12 Docket No. 12-1793 (issued May 7, 2013).

13 Docket No. 14-1863 (issued July 7, 2015). The Board found that the evidence supported that appellant 

forfeited his entitlement to compensation for the periods May 1, 1993 to July 19, 1995, April 16, 1996 to July 16, 

1997, and April 1, 1998 to June 9, 2005. The case was remanded to OWCP for further development, including 

recalculation of the amount of the overpayment resulting from the forfeiture of compensation, and issuance of an 

appropriate decision.
4

The fee petition for Docket No. 11-2061 requests approval of $3,290.00 in services from 

September 12, 2011 through March 30, 2012 and documents 11.25 hours spent in connection 

with this appeal before the Board at $300.00 per hour for 10.85 hours for John S. Evangelisti,

Esquire for a total of $3,255.00,14 and $175.00 per hour for 0.20 hours for Paralegal Jodi 

Waldron for a total of $35.00. The fee petition described the specific services provided for the 

amounts of time claimed. 

The fee petition for Docket No. 12-1793 requests approval of $3,570.00 in services from 

June 18, 2012 through May 9, 2013 and documents 15.20 hours spent in connection with this 

appeal before the Board. The fee included $300.00 per hour for 2.20 hours for John S. 

Evangelisti, Esquire for a total of $660.00, $225.00 per hour for 12.70 hours for Christopher 

Lopez, Esquire for a total of $2,857.50, and $175.00 per hour for 0.20 hours for Paralegal Jodi 

Waldron for a total of $35.00. The fee petition described the specific services provided for the 

amounts of time claimed. 

The fee petition for Docket No. 14-1863 requests approval of $5,997.50 in services from 

June 12 through December 17, 2014 and documents 26.55 hours spent in connection with this 

appeal before the Board. The fee included $300.00 per hour for 0.45 hours for John S. 

Evangelisti, Esquire for a total of $135.00, $225.00 per hour for 25.90 hours for Christopher 

Lopez, Esquire for a total of $5,827.50, and $175.00 per hour for 0.20 hours for Paralegal Jodi 

Waldron for a total of $35.00. The fee petition described the specific services provided for the 

amounts of time claimed. 

The Board has carefully reviewed the three fee petitions, and finds that they satisfy the 

requirements of section 501.9(e) of the Board’s implementing regulations. The Board concludes 

that the total 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 up to a year or both. 

 

14 Counsel did not charge for .10 hours on November 7, 2011 and .10 hours on March 30, 2012.
5

IT IS HEREBY ORDERED THAT the three fee petitions are granted in the total 

amount of $12,857.50.15

Issued: December 18, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

15 Colleen Duffy Kiko, Judge, participated in the preparation of this order, but was no longer a member of the 

Board effective December 11, 2017.