Employees Who Win Their MSPB Hearing Can Get an Attorney Fee Award | Andalman & Flynn Law Firm
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Employees Who Win Their MSPB Hearing Can Get an Attorney Fee Award

Mar 6, 2018 | Federal Disability Retirement

While Andalman & Flynn has an excellent record winning FERS disability retirement (FDR) benefits for federal and postal employees, our success is occasionally delayed by erroneous denial decisions issued by the Office of Personnel Management (OPM). OPM is the federal agency charged with processing FDR applications. When OPM denies an FDR application, the claimant has the right to appeal by filing a request for reconsideration with OPM. If the FDR application is again denied by OPM on reconsideration, the disabled worker has the right to appeal to the Merit Systems Protection Board (MSPB).

The MSPB is an independent agency that has the responsibility to hear appeals of federal employees covering a wide array of problems, including denial decisions on FDR applications. Employees are entitled to an appeal to the MSPB which consists of a hearing held before an administrative judge (AJ). If the judge issues a decision approving the FDR application, the employee has the right to file a motion with the Judge requesting that OPM pay the attorney fee for the work before the MSPB.

A motion for fees must be filed with the MSPB within 60 days of the date of the AJ’s decision requesting that OPM pay the attorney’s fee. The motion must include the following documents:

  • A complete itemized record of the time that the attorney and his office worked on the MSPB appeal
  • A copy of the fee agreement between the attorney and the disabled worker
  • A written statement detailing the attorney’s customary billing rate for handling similar work (ex: FDR applications, appeals to MSPB, etc.)

Additionally, the attorney must prove the following points in order for the AJ to approve the fee petition:

  1. The appellant (i.e., the disabled worker appealing OPM’s denial) must the be the prevailing (i.e., winning) party
  2. There must have been an attorney-client relationship between the applicant and the attorney when the fees were incurred
  3. The requested fees must be reasonable
  4. The award of attorney fees must be “warranted in the interest of justice.”

As it may be clear, the award of attorney fees is not automatic. Generally, to show that the award is “in the interest of justice,” the employee must convince the court that OPM had sufficient evidence before it so that the application should have been awarded on reconsideration and an appeal to MSPB should not have been necessary. The AJ will make a ruling on the motion. If the motion is approved, the AJ will determine the reasonable amount of fees to be paid by OPM.

Payment of the attorney fee by the agency is wholly separate from the retroactive benefits and ongoing monthly benefits that the disabled employee will receive by winning their appeal. Ultimately, the award of attorney fees provides the disabled worker and their attorney an additional benefit.

Contact Andalman & Flynn for Assistance with Your FDR Claim in Maryland

The disability team at Andalman & Flynn has the experience, the knowledge, and the passion to assist with the filing, processing and winning of FERS disability retirement claims and other disability benefit claims including long-term disability (LTD)/ERISA claims, State of Maryland disability retirement claims, and social security disability benefit claims. Contact us today online through our website or over the phone at (301) 563-6685 to set up a free consultation.

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