If a Federal or Postal employee succeeds in their MSPB appeal challenging OPM’s denial of federal disability retirement benefits, can the Federal or Postal employee recover their attorney fees?
The short answer is generally yes,.
To recover attorney fees before the MSPB, a Federal or Postal employee must show the following elements:
1) There was an attorney-client relationship exists pursuant to which an attorney provided legal services on the appellant’s behalf in connection with an MSPB proceeding. Typically, the best evidence of this is the attorney client agreement. Typically, this will not be disputed, as it is often clear when an attorney client relationship exists. However, occasionally, OPM (or other Federal Agencies) will try to argue that no attorney-client relationship exists because there was no written attorney-client agreement. Agency attorneys and OPM attorneys often feel that they have to make this argument, but it’s just a silly one. I know of no state ethics law or rule which says that there is no attorney client relationship without a contract. Having said that, smart law firms and smart clients sign attorney-client agreements. But it’s not necessary to recover fees in an MSPB appeal. For example, if you had 3 consultations with attorneys prior to filing your disability retirement application, you should claim those fees if you prevail against OPM.
2) The Appellant was a “prevailing party”. This seems like an easy element, but it can get tricky. Generally, to be a prevailing party for the purpose of an attorney-fee petition, the Appellant has to show that there was a material change in his or her position that came about as a direct result of the legal proceedings. So, for example, if OPM withdraws its decision denying you disability retirement benefits on the eve of a hearing at the MSPB, are you a prevailing party? In reality, yes – you won. Will you recover attorney fees? No. Generally, you need an MSPB Administrative Judge’s decision reversing OPM’s denial of benefits to be a prevailing party.
3) The award of attorney fees is “warranted in the interest of justice”. In employee-initiated disability retirement appeals, an award of attorney fees is warranted in the interest of justice in two scenarios: a) when OPM knew or should have known that it would not prevail on the merits at the time it issued its final decision, or b) when OPM’s decision is clearly without merit. The first scenario, that an award is warranted under the “knew or should have known” category focuses on the nature and weight of the evidence available to OPM at the time it issued its final decision
4) The fees requested are “reasonable.” The Federal employee or Postal worker who is seeking attorney fees for a successful MSPB appeal on their disability retirement issue can prove this element by proving that the hourly rate the attorney charged was fair and reasonable, and that the hours expended were not excessive, repetitive and were for compensable services. There are too many variables to lay out how to prove whether an attorneys’ hourly rate is fair and reasonable, and whether the hours expended were not excessive, etc. However, when our Firm submits attorney fee petitions, we spend considerable time reviewing the work provided to ensure that we meet – or exceed – the MSPB standards.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee or postal worker, with some power. This information is not widely or easily accessible to Federal Employees or postal workers.
The Law Office of Eric Pines represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.
It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and federal disability retirement appeals to discuss the facts and law of your particular case. If you are an employee of the USPS, or a Federal employee under FERS or CSRS, and are considering applying for federal disability retirement to OPM, or would like to discuss your application for federal disability retirement, under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney or a Federal Disability Retirement Lawyer at the Law Office of Eric Pines to schedule a telephone consultation.