| Federal or Postal employee often hire attorneys to file | | | | Postal worker disability retirement; if this happens, you |
| their applications for federal disability retirement with | | | | won't recover attorney fees except in the rarest of |
| OPM, or to help them in an MSPB appeal when OPM | | | | situations. This is because the MSPB takes the position |
| denies that application. | | | | that the material change in your circumstances came |
| If a Federal or Postal employee hires an attorney, can | | | | about because of the OPM reversal of their own |
| they recover attorney fees from OPM? The answer | | | | decision, not because of the MSPB appeal. Of course, |
| to this question depends on whether the Federal | | | | many of you are saying, "But OPM would not have |
| employee or postal worker can prove four (4) | | | | changed their mind unless my attorney filed a disability |
| elements: | | | | retirement appeal with the MSPB", and you are right. |
| 1) Was there was an attorney-client relationship, in | | | | However, unless the MSPB Administrative Judge |
| which an attorney provided legal services for the | | | | orders OPM to pay you disability retirement benefits, |
| Federal employee or postal worker, in connection with | | | | the MSPB will not consider you a "prevailing party". |
| an MSPB matter? The best evidence of this is usually | | | | 3) Is an award of attorney fees "warranted in the |
| the attorney's appearance in an MSPB appeal, on | | | | interest of justice"? What on earth does this mean? In |
| behalf of the Federal employee or Postal worker. So, if | | | | and MSPB appeal on a disability retirement matter, the |
| OPM grants an application for federal disability | | | | MSPB has found that attorney fees are warranted "in |
| retirement and the Federal employee or Postal worker | | | | the interest of justice" in 2 situations. First, when OPM |
| never has to file an MSPB appeal, then the applicant | | | | knew of should have known that it would not win on |
| will not recover attorney fees. If an attorney does | | | | the merits - at the time that issued its reconsideration |
| appear on your behalf, it is always better to have a | | | | decision denying you disability retirement benefits. So, if |
| written attorney-client agreement. For example, my | | | | your victory is based on evidence that hadn't been |
| Firm, the Attig Law Firm, will not represent any client | | | | submitted to OPM prior to its reconsideration decision, |
| for any reason without a signed attorney-client | | | | you may not recover attorney fees. There is a |
| agreement. This protects both the client and the Firm; | | | | second scenario - that OPM's decision denying the |
| be wary of attorneys that offer to represent you | | | | federal employee or postal worker is totally without |
| without providing you a written attorney client | | | | merit. These types of situations are heavily fact |
| agreement. But, if you had legal consultations with | | | | dependent, but generally this means that a reasonable |
| attorneys, you may not have signed an attorney-client | | | | mind could not justify OPM's denial of disability |
| agreement, and for this reason, you need only show | | | | retirement benefits. |
| that the attorney with whom you consulted provided | | | | 4) Are the attorney fees sought "reasonable?" In an |
| legal advice or services in connection with an MSPB | | | | MSPB appeal, a USPS worker or Federal employee |
| appeal, and you should be able to recover those | | | | can show that the fees they are seeking are |
| consultation fees if you prevailed before the MSPB | | | | reasonable by showing two things: a) that the hourly |
| against OPM. | | | | rate their attorney charged was reasonable, and b) |
| 2) Were you, the Appellant, a "prevailing party". This | | | | that the time the attorney spent on the matter was |
| seems pretty straightforward, but the term "prevailing | | | | not duplicative, excessive, and was for compensable |
| party" has a very particular meaning before the MSPB. | | | | legal services. |
| To be a "prevailing party", the Federal employee or | | | | If the Federal employee or USPS employee who has |
| postal worker must show that his or her position | | | | appealed OPM's denial of disability retirement to the |
| materially changed due to a ruling of the Administrative | | | | MSPB can prove the above four (4) elements, then |
| Judge of the MSPB. Let me give an example. It often | | | | the employee will likely be able to recover their |
| happens that, on the eve of the MSPB hearing, OPM | | | | attorney fees. |
| changes its mind and grants a Federal employee or | | | | |