United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of N.N., Appellant 

and 

DEPARTMENT OF ENERGY, OFFICE OF 

HUMAN CAPITAL MANAGEMENT 

Washington, DC, Employer 

________________________________________ 

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Docket No. 14-603 

Issued: October 13, 2015 

Appearances: Oral Argument June 12, 2014 

Alane Tempchin, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER GRANTING FEE PETITION 

Before: 

PATRICIA HOWARD FITZGERALD, Judge 

ALEC J. KOROMILAS, Alternate Judge 

MICHAEL E. GROOM, Alternate Judge 

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

of four thousand, two hundred, and thirty-seven dollars and fifty cents ($4,237.50). The 

requested fee pertains to services performed before the Board in the above-referenced appeal. 

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,1 (FECA) and under its Rules of Procedure found at 20 C.F.R. 

§ 501.9(e). 

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.2

 No response was 

received.3

 1

 5 U.S.C. § 8127. 

2

 20 C.F.R. § 501.9(e). 

3

 The Board notes that included with the attorney’s fee petition was a signed statement from appellant indicating 

that she agreed with the requested fee. 
2

Pursuant to the Board’s regulation, as the fee requested was not de minimis, the Board 

must consider the fee petition under the following 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;7 and 

(5) Customary local charges for similar services.8

Regarding the usefulness of the representative’s services, the Board notes that in the 

decision dated July 22, 2014 the Board affirmed in part, and set aside in part the August 16, 2013 

decision of the Office of Workers’ Compensation Programs (OWCP). The Board found that 

OWCP met its burden of proof in establishing that appellant was overpaid for 65 hours during 

the period June 29, 1992 to February 19, 1993. The Board further found that the case was not in 

posture regarding the amount of the overpayment of compensation. Additionally, the Board 

found that appellant was at fault in creation of the overpayment and that the overpayment was 

therefore not subject to waiver of recovery. 

The issue on appeal concerning the possible overpayment, as well as the issue of fault in 

its creation, required a merit review by the Board. On appeal appellant’s counsel submitted a 14-

page brief with supporting legal citation in support of her argument that appellant was not at fault 

in creating the overpayment of compensation and that OWCP erred by denying waiver of 

recovery. Appellant’s counsel requested an oral argument before the Board. 

Appellant’s counsel appeared before the Board at oral argument in her capacity as 

properly appointed legal counsel. 

 4

 The Board’s consideration of “usefulness” includes, but is not limited to, the frequency and quality of 

communication by the attorney with the client, the factual evidence and legal argument offered by the attorney and 

written pleadings filed in the case. The Board will also consider the usefulness of an attorney’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 attorney must establish the complex or 

unusual nature of the appeal. 

6

 The Board’s consideration of the “capacity” in which an attorney appears includes, but is not limited to, whether 

the attorney obtained a written retainer and fee agreement. 

7

 The Board’s evaluation of an attorney’s 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 counsel 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 attorneys often have clients in several states 

and that local custom must be balanced against national practice in the FECA appeals. 
3

The fee petition documents 28.25 hours spent in connection with this appeal before the 

Board. The fee petition also documents the customary local charges for similar services as 

$150.00 per hour. 

The Board has reviewed the fee petition and finds that it satisfies the requirements of 

section 501.9(e) of the Board’s implementing regulation. The Board after review of the petition 

concludes that the fee requested is reasonable. 

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

thousand, two hundred, and thirty-seven dollars and fifty cents ($4,237.50).9

Issued: October 13, 2015 

Washington, DC 

 

 Patricia Howard Fitzgerald, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9

 Michael E. Groom, Alternate Judge, participated in the original decision but was no longer a member of the 

Board effective December 27, 2014 and did not participate in the preparation of this order.