United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of V.P., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Diego, CA, Employer 

__________________________________________ 

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Docket No. 13-0137 

Issued: August 22, 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: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

Counsel for appellant has filed a fee petition in the amount of $1,874.00.1 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

 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

Pursuant to its regulation, the Board considered 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

By order dated October 2, 2014, the Board denied counsel’s fee petition as it had failed to 

adequately delineate the services performed and otherwise failed to explain in detail how the 

claimed fee was justified under the five factors listed above especially noting that appellant 

objected to the fee requested. The Board also requested counsel to provide additional information 

concerning the solicitation and collection of fees from appellant. Counsel was permitted 60 days 

to resubmit the fee petition. 

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 resubmitted fee petition.9

 No 

response was received.10 On April 1, 2014 the Clerk of the Appellate Boards received 

appellant’s letter disputing the amount of fees being charged. 

The requested fees pertain to services performed before the Board in the abovereferenced appeal. The underlying issue was whether appellant met her burden of proof to 

establish that modification of a March 13, 2012 loss of wage-earning capacity determination was 

warranted. By decision dated June 29, 2012, OWCP denied appellant’s request for modification. 

By decision dated August 22, 2013, the Board affirmed OWCP’s denial of her request for 

modification of the March 13, 2012 loss of wage-earning capacity determination. 

 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 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

On appeal, counsel submitted a three-page brief arguing that the constructed position 

used to establish the March 13, 2012 loss of wage-earning capacity decision was not suitable and 

that OWCP failed to address the medical evidence of record. Lastly, counsel argued that the 

impartial medical adviser failed to consider her nonindustrial conditions when determining her 

work capability. 

On November 18, 2014 counsel provided a supplemental fee petition addressing the 

deficiencies previously noted by the Board. He clarified the different amounts being charged for 

two individuals in the itemized statements. Counsel addressed the usefulness of his services 

noting that the case was complex and involved a loss of wage-earning determination. 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 June 29, 2012 and the appeal was filed with the 

Board on October 25, 2012. The fee petition requests approval of time from October 1, 2012, 

through August 27, 2013 and documents .5 hours spent in connection with this appeal before the 

Board at $525.00 per hour for Steven E. Brown, Esq., 1.20 hours at $395.00 and 1.60 hours at 

$425.00 for Daniel M. Goodkin, Esq., and .70 hours at $195.00 per hour and 1.80 hours at 

$185.00 per hour for Paralegal Erika Bauer. No information was provided as to the date of the 

fee increase, but it appears to have increased between January 1 and April 17, 2013. 

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 “Office meeting on file status.” In each of these meetings 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 1.90 hours (October 2, 2012, 

January 30, April 17,11 and August 1, 2013) as excessive and redundant:12 

Daniel Goodkin 0.50@ $395.00 $197.50 

 0.50@ $425.00 $212.50 

Steven Brown .50@ $525.00 $262.50 

Erika Bauer .20@ $185.00 $ 37.00 

 .20@ $195.00 $ 39.00 

Total: 1.90 $748.50 

 11 It appears that Steve Brown has been double billed for this date. 

12 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. 
4

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.” 

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

$1,125.50. 

Issued: August 22, 2016 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board