Special Fee Shifting Statute: Employee Cannot Deduct Litigation Costs From Refund Owed To U.S. From Any FECA Benefits After Third Party Recovery

 

Ninth Circuit So Rules In Case of Statutory Construction.

     Under the Federal Employee Compensation Act (FECA), disability benefits are provided to federal employees who are injured on the job, subject to an employee bringing a civil case against a responsible third party and refunding to the U.S. any FECA benefits received by the employee.

     The Ninth Circuit, in Durand v. U.S. Dept. of Labor, Case No 10-36184 (9th Cir. Nov. 17, 2011) (for publication), decided that an employee involved in a helicopter crash cannot deduct litigation costs from that refund under 5 U.S.C. § 8132. Although the employee may deduct his litigation costs (including fees) from his gross recovery to determine any surplus amount credited to the U.S., the deduction cannot be made at the refund level.