S.B., attorney for W.A., and Department of Transportation, Federal Aviation Administration, Atlanta, GA (Board decision, June 3, 2014)

ECAB remand decision and order. The Board set aside OWCP’s August 22, 2013 attorney fee decision because OWCP did not give the attorney an opportunity to respond before reducing his requested fee. OWCP must follow its fee procedure and issue a new decision; the approved amount remains unresolved. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

S.B., an attorney for W.A., requested approval of $340.50 in fees for work before OWCP. W.A. did not approve the listed fees, and OWCP approved only $13.50, saying the other services were unrelated to the claim. The Board noted that OWCP’s procedure required notice and an opportunity to respond when it proposed reducing an attorney fee request. Because OWCP had not given S.B. that opportunity, the Board set aside its decision and sent the fee request back for proper procedure and a new decision. The Board did not set a fee amount.

Decision snapshot

• Authority: Representative fee applications, 20 C.F.R. § 10.703(a).
• Outcome: Fee approval set aside and remanded; the final amount remains undecided.
• Key point: OWCP had to notify the attorney and allow a response before reducing the requested fee.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
S.B., attorney for W.A., Appellant
)
)
and ) Docket No. 14-271
) Issued: June 3, 2014
DEPARTMENT OF TRANSPORTATION,
)
FEDERAL AVIATION ADMINISTRATION,
)
Atlanta, GA, Employer
)
__________ )

Appearances: Case Submitted on the Record
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE
Re: Attorney’s Fee

Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On November 20, 2013 appellant, through his attorney, filed an application for review of an August 22, 2013 decision of the Office of Workers’ Compensation Programs regarding his application for attorney fees for services performed before OWCP. The Board assigned Docket No. 14-271.

On December 31, 2012 appellant’s attorney submitted an application for approval of attorney fees claiming that $340.50 in fees were due to him.1 Appellant did not approve the fees listed in the request. In an August 22, 2013 decision, OWCP approved fees in the amount of $13.50, indicating that the unapproved portion of the attorney’s fee request was for matters not related to appellant’s OWCP claim.

Section 10.703(a)(1)(ii) of the Code of Federal Regulations provides in pertinent part that a representative must submit a fee application, which includes a statement of agreement or disagreement with the amount charged, signed by the claimant.2 OWCP will review the fee

1
In mid-1989, OWCP accepted that appellant, then a 49-year-old assistant air traffic manager, sustained major depression due to his work. Appellant received disability compensation on the periodic rolls. 2 20 C.F.R. § 10.703(a). application to determine whether the amount of the fee is substantially in excess of the value of services received by looking at the following factors: (i) usefulness of the representative’s services; (ii) the nature and complexity of the claim; (iii) the actual time spent on development and presentation of the claim; and (iv) customary local charges for services for a representative of similar background and experience.3

OWCP procedure provides that, when reduction of attorney’s fees is proposed, it will issue a letter to the representative explaining the reasons for the proposed fee reduction and advise him or her to submit evidence or argument against the reduction within 30 days of the letter.4

In the present case, OWCP approved only a portion of the attorney’s fee request, but it did not provide the attorney an opportunity to submit evidence or argument against the reduction in approved fees. As it did not follow its own procedure, its August 22, 2013 decision will be set aside and the case remanded for proper application of the relevant procedure.

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated August 22, 2013 be set aside and the case remanded for further action in conformance with this order of the Board to be followed by an appropriate decision.

Issued: June 3, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

3
Id. at § 10.703(c).
4
Federal (FECA) Procedure Manual, Part 2 -- Claims, Representatives’ Services, Chapter 2.1200.6g (June 2012); see K.C., Docket No. 06-2130 (issued July 24, 2007); Arthur B. Cole, 36 ECAB 349 (1984).

2