Attig Law Firm P.L.L.C

Earlier this fall, Congress passed the Americans with Disabilities Amendments Act of 2008.  The Act takes effect on January 1, 2009, but most attorneys - private sector and government sector alike - are unfamiliar with the strictures of the new law.    

Most practitioners that are aware of the ADA Amendments Act are unsure of how the new law will affect disabled employees; generally, most of us are excited about the broadened protections that the ADA Amendments Act offers disabled employees.  The new ADA Amendments Act is an attempt by Congress to “fix” 18 years of Supreme and other Court rulings that whittled away at the rights of our disabled workers.

Here is a brief summary of what the ADA Amendments Act does:

1) It directs the EEOC to revise the portion of its regulations defining the term “substantially limits”.  The definition of a disabled worker has been widely accepted, generally, to be “…one who has a medical condition which ’substantially limits’ a major life activity…”  The phrase ’substantially limits’ has been defined so narrowly that proving oneself to be disabled is often a major hurdle;

2) It expands the definition of “major life activities” by including two non-exhaustive lists.  Until now, it was hard to prove that certain life activities were “major life activities” because they were not listed specifically in the statute or because Courts had previously not recognized the activity to be a major life activity. The new Act now includes activities the EEOC has recognized with activities that the EEOC has not specifically recognized (reading, bending, etc.). The new Act also includes major bodily functions as “major life activities” - functioning of the immune, digestive, neurological, respiratory, circulatory, and reproductive functions;

3) The ADA Amendments act clarifies that an impairment - that is episodic or in remission - is still a disability if, when active, it would substantially limit a major life activity.  This will greatly benefit individuals suffering from conditions such as cancer, epilepsy, migraines, and other such conditions;

4) The Act clarifies that if your employer treats you as if you are disabled - regardless of whether or not there is a substantial limitation - that you will be considered in the “protected group” for claims of disparate treatment or disparate impact or hostile work environment (although you won’t, obviously, qualify for a reasonable accommodation);

5) Instructs courts and employers to interpret - very broadly - the definition of disability.

The ADA Amendments Act of 2008 will greatly improve - hopefully - the protections for our disabled workforce.  If you believe that you have been terminated because of your disability, please contact the 

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 employee, some power. This information is not widely or easily accessible to many employees.

It is best to consult with a lawyer familiar with disability discrimination claims to discuss the facts and law of your particular case.

The Attig Law Firm, PLLC, represents Federal employees around the country and disabled workers in North Texas in their disability discrimination claims against their employers.  

If you believe you were fired by your employer because of your disability, contact the Attig Law Firm, PLLC, to schedule a telephone consultation. 

Often times, Agencies persuade employees to settle their removal appeal by agreeing to alter the removal grounds so that the employee is removed for medical inability to perform the functions of their job.  Read more about this by clicking here.  In other situations, federal employees are advised that such a removal is almost a guaranteed basis for securing disability retirement.    

Generally, it is true that a Federal employee who is removed for medical inability to perform the functions of their job will have an easier time proving that they are entitled to disability retirement.  Employees in this situation have the benefit of what is called the “Bruner presumption”.  The “Bruner presumption” is based on the Bruner case, and here’s how it works.  Generally, an applicant for disability retirement (under FERS and CSRS) has the burden of proving the necessary elements by a “preponderance of the evidence”.  However, when the employee is  removed on “medical inability” type grounds, the burden of proof shifts - to OPM - to prove that the applicant is not entitled to disability retirement.    

We tell our clients to be wary of Agencies that try to offer you some benefit in settlement that will “guarantee” your eligibility for disability retirement.   We also tell our potential clients that, most times, the Bruner presumption favors the disability retirement applicant. Sometimes, however, the Bruner presumption doesn’t help the applicant - in July 2008, however, the Board issued a decision where the Bruner presumption was applied, but still found in favor of OPM’s denial of disability retirement.  (Note of caution: the Board decision was an intial decision of the Administrative Judge, and thus cannot be cited in briefs, and has no precedential value).

In this particular case (the applicant was pro-se, and did not have an attorney or lawyer represent her before the Board), what bothered the MSPB Administrative Judge was that there was a lack of “objective medical evidence” showing that the applicant’s medical condition actually had an impact on her ability to do the work she was assigned.   There were some doctor’s notes, but they appear to be mostly generic statements that really didn’t explain, in medical terms, how the condition prevents the applicatn from doing her work.  

This is what happens quite often in removal-settlement scenarios, particularly when a medical condition is involved. The Agency agrees to replace the removal letter with a “removal for medical inability” type letter.  They’re happy because you give up your appeal, and they have no liability in the future.  The Judge is happy, because it’s one less case to hear and decision to write.  You’re happy, because you’ve been told you’re almost guaranteed to get disability retirement.   Who’s not happy - OPM.  Why?  Because the Agency’s action is often not based on any real medical evidence or, in some situations, it is based on medical evidence but they don’t state that in their letter.   OPM is concerned that the Agency is trying to encroach on their authority to make dispensations from the disability retirement fund, and the employee is the one caught in the middle.

How do you prevent this from happening?  A few things can be done.  

First, make sure that if an Agency agrees to remove you based on medical inability that they state the condition and the inabilities, and the doctor’s notes on which they relied on in the removal letter.   

Second, make sure that the Agency agrees - in the settlement agreement - to provide a supervisory statement in support of your application for disability retirement.  We often attach such a supervisory statement as “Exhibit A” to the settlement agreement.  

Third, make sure that your doctor has observed a nexus between your medical condition and your inability to perform certain tasks, and that your doctor can articulate why your medical condition prevents you from rendering useful and efficient government service - in other words, can your doctor explain how your particular medical condition prevents you from doing particular tasks in your job. If your doctor cannot articulate this “nexus”, the Bruner presumption cannot help you.   I have found it helpful to have clients take their position description to their doctor, and have the doctor explain exactly what tasks on that PD the employee cannot do because of the medical condition and why. 

Fourth, always have an attorney or lawyer experienced before the Merit Systems Protection Board (MSPB) or with FERS or CSRS disability retirement claims look over any settlement agreement and/or disability retirement application.  Those of us that practice regularly before the Board can spot a problem a mile away.  Agency attorneys, who come and go from the Agency, often don’t have sufficient know-how to properly advise you on whether and how the Bruner presumption might work in your situation. 

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, with some power. This information is not widely or easily accessible to Federal Employees. It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case.

If you believe that an OPM denial of disability retirement is improper, and would like to challenge the OPM decision on disability retirement to the MSPB, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.   

Often we see letters from OPM denying an employee’s request for disability retirement based on the fact that there is no evidence that the disability resulted in any performance, conduct or attendance deficiencies.   Usually, OPM’s analysis stops there.

However, this is not the only element that OPM must consider.   When there is no performance. conduct or attendance deficiency, the relevant question is whether the appellant’s medical condition is incompatible with either useful and efficient service or retention in the employee’s former position.

If OPM fails to consider both of these elements, then you may have grounds to appeal OPM’s decision to the Merit Systems Protection Board (MSPB).  Before the MSPB, you will need to show evidence of a disability (click here to link to our series of posts on disability retirement under FERS.

Most importantly, a determination of disability must be based on the probative value of all of the evidence, including: (1) Objective clinical findings; (2) diagnoses and medical opinions; (3) subjective evidence of pain and disability; and (4) all evidence relating to the effect of the employee’s condition on his ability to perform in the position he last occupied.

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, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you believe that an OPM denial of disability retirement is improper, and would like to challenge the OPM decision on disability retirement to the MSPB, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

A client of the Attig Law Firm, PLLC, prevailed in her claims of discrimination against the United States Postal Service.  Names of individuals involved and their locations will not be revealed at this time.

The client is a Rural Carrier Associate, and alleged that she was discriminated against on the basis of her race, age and sex, when the Agency issued a 14 day paper suspension, when she was denied the use of postal vehicles, when she was denied assistance on her routes, when she was denied prompt pay adjustments, and when she was required to submit medical documentation for certain brief absences.

The Postal Service, in this case, had advance notice of possible sex discrimination and/or sex harassment in the workplace, as a USPS Workplace Intervention Team had previously released a report illustrating the problems with this particular postmaster.

For example, the Workplace Intervention Analyst testified at hearing of complaints from over 21 employees, many of them female, that the male Postmaster in the USPS had waived a fire extinguisher around like a sex organ, that he had made comments about a particular employee not being able to keep her legs together, that he introduced a chiropractor to his male employees by telling them “she is not that bad looking either”, that he had made several comments in front of female employees about his “wee-wee”, and that the employees in this particular post-office felt that favorable treatment was given to those employees that were “young, blonde, and pretty”.

Particularly disturbing was the Analyst’s testimony that the Postmaster was evasive in his responses to the analyst’s questions, and that the Postmaster attempted to diminish the Workplace Improvement Analysis findings. Indeed, the Administrative Judge also found the Postmaster to be evasive, and concluded that the Postmaster’s testimony denying discrimination was not credible.

The evidence at hearing illustrated the race-based problems that exist at this particular Post Office as well. Only 5 black employees have worked at this particular post office in the past 3 years.  One was fired, another resigned, another was transferred, and a fourth walked off the job.  The fifth, our client, filed the EEO complaint in 2007 that led to this decision.

The EEOC Administrative Judge found that our client had successfully proved that the Agency’s proffered reasons for its action were a pretext for discrimination.   The next step in the process will be discovery and petitions on the matter of damages, followed by the Administrative Judge’s rulings on the matter of damages.

Congratulations to our client - leading the charge against a discriminatory Postmaster has cost our client dearly in terms of health, money and reputation.  She has has worked her heart out in a good cause and lies exhausted on the field of battle - victorious.

The Attig Law Firm, PLLC, recently learned that it was successful in its
efforts to assist a U.S. Veteran in securing disability benefits for a
disability he incurred in the course of his military service.

Our client was a peace-time veteran of the U.S. Air Force. During his time
in the Air Force, he suffered substantial hearing loss. In 2005, nearly
three decades after his military service, the Veteran applied for disability
benefits for the loss in hearing caused by his military service. In 2007,
after 2 years of delay by the Department of Veterans Affairs, the Veteran
contacted the Attig Law Firm.

Because of the Veteran’s special circumstances, the Attig Law Firm agreed to
represent the Veteran, pro-bono, before the VA Regional Office. Federal law
and VA regulations restrict attorneys from representing veterans in their
disability benefits claims at the Regional Office stage, unless the attorney
represents the veteran pro-bono.

In a decision received in July 2008, the Attig Law Firm learned that the VA
Regional Office has approved disability benefits for our client’s hearing
loss. The Veteran will be paid back-benefits in excess of $20,000.00, and
will receive several hundred dollar increase in his monthly benefits for the
remainder of his life.

The Attig Law Firm, PLLC, represents U.S. Veterans who have been denied
disability benefits for injuries that resulted from their military service.
The Firm currently represents peace-time and war-time veterans of all
branches of the military, at all levels of the claim process (VA Regional
Office, Board of Veterans’ Appeals, and the Court of Appeals for Veterans’
Claims).

Here is a question we have seen with increasing regularity over the past several months. A Federal employee/retiree has been receiving disability benefits through OPM, and for some reason or another, OPM determines that the employee/retiree has been overpaid benefits. OPM determines a repayment schedule that is onerous, and it some cases, unconscionable. The question is this: can a Federal retiree seek waiver of an overpayment of benefits.

Generally, the answer is “yes” - the employee/retiree can appeal OPM’s overpayment decision to the Merit Systems Protection Board (MSPB).

Let’s assume, for this question, that the overpayment is valid - that the employee/retiree has in fact, received more benefits than those to which he/she is entitled. In those cases, the employee/retiree can seek either a full or partial waiver of OPM’s entitlement to recovery of the overpayment.

Waiver of recovery of an overpayment may be granted when the federal employee/retiree meets two criteria:

1) the employee is without fault; and,

2) recovery would be against equity and good conscience. 5 U.S.C. § 8346(b); 5 C.F.R. § 831.1401.

As to the first - if the employee is with fault, and had reason to know that the overpayment was occurring, the MSPB has held that the employee/retiree should set aside the overpayment so that the funds are available when OPM comes calling. Of course, many federal employee/retirees are not in a position to do so. If you have failed to set aside a known overpayment of retirement benefits, it is best to speak to an attorney or lawyer that practices before the MSPB.

To the second element, the MSPB has held that recovery is against equity and good conscience when: “it would cause financial hardship, the federal employee/retiree can show that because of the overpayment (s)he relinquished a valuable right or changed positions for the worse, or recovery could be unconscionable under the circumstances.” 5 C.F.R. § 831.1403(a).

Also, where the appellant is without fault and recovery of some portion, but not all, of the overpayment would be against equity and good conscience, a partial waiver may be warranted.

To show that recovery would work a hardship on the federal employee/retiree, (s)he should show that his/her ordinary and necessary monthly expenses, plus a $50 for emergency expenses, exceed his/her current income or liquid assets. Fusco v. Office of Personnel Management, 42 M.S.P.R. 501, 508 (1989).

To do this, in the first letter you receive from OPM, you should be provided a Financial Resource Questionnaire (FRQ). It is important that you fill out this form completely and properly, as OPM will attempt to “nickle and dime” you to prove that you have liquid assets available to repay the overpayment. For example, including a category of “other expenses” will cause OPM to strike any of those expenses claimed, as they were not properly itemized.

The Attig Law Firm, PLLC, recommends that, in addition to using the FRQ provided by the OPM, the Federal employee/retiree should attach, as a continuation sheet to the FRQ, a more thorough and complete “family balance sheet” that paints a more accurate picture of your real financial situation. In some situations, to ensure the best results with a minimum of legal intervention, it is best to include evidence of each claimed amount on this balance sheet.

After submitting the FRQ, the OPM will make a reconsideration decision - they can waive or reduce the overpayment or, as we are seeing with increasing regularity, ignore your position that your expenses exceed your income. If you are not pleased with the OPM’s decision, you can appeal that decision, within 30 days, to the Merit Systems Protection Board (MSPB).

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, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you find yourself in a situation where OPM is claiming that you were overpaid retirement benefits, and would like to challenge OPM’s calculations of the overpayment or the waiver amount to the MSPB, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

In a decision issued July 3, 2008, the full Merit Systems Protection Board reversed the removal of its employee George Bruton. This case is interesting for a couple reasons - but first, the facts. (You can read the full decision by clicking on this text).

Mr. Bruton was a VA employee. As with most Federal employees, his problems started when he was injured on the job in 2002. In 2005, Mr. Bruton’s doctor restricted him to 3 hours a day of work. The Office of Workers Compensation directed that Mr. Bruton get a second opinion and, because the second opinion was different from that of his own doctor, Mr. Bruton was required to get a referee opinion. The referee opinion determined that Mr. Bruton could work an 8 hour day.

Mr. Bruton was directed to return to work, and he did, but only worked a 3 hour day, consistent with his doctor’s restrictions. After about 3 months, the VA removed Mr. Bruton.

The Administrative Judge in Mr. Bruton’s MSPB appeal sustained the Agency’s removal action in November/December 2006. In February 2008, Mr. Bruton filed a Petition for Review before the Board, the Board granted the appeal, and reversed the removal action.

There is one interesting point about this appeal. Typically, a Federal employee only has 30 days from the date of an Initial MSPB Decision to file their appeal to the full Board in Washington, D.C. Typically, the Full Board is not very lenient when appellants miss their filing deadlines. The Attig Law Firm, PLLC, routinely informs potential new clients of the difficulty in getting a late PFR to be heard by the Full Board, and strongly encourages that appellants get their appeal or petition for review postmarked and sent certified mail as soon as possible within their 30 days deadline.

In this case, the employee filed his appeal nearly 14 months later. The Board granted the appeal based on the fact that Mr. Bruton had new evidence that was not available at the time that the decision was issued.

What was the new evidence? A decision of the Employees’ Compensation Appeals Board (ECAB), that determined in January/February 2008, that the earlier decision of the OWCP was in error, and reinstating Mr. Bruton’s benefits effective some time in 2006.

Here’s the standard for filing an untimely appeal when there is new evidence that may inform the outcome of the case: “the discovery of new evidence may establish good cause for the untimely filing of a petition for review if the evidence was not readily available before the close of the record below, and if it is of sufficient weight to warrant an outcome different from that of the initial decision.” Satterfield v. U.S. Postal Service, 80 M.S.P.R. 132, ¶ 5 (1998) (quoting Boyd-Casey v. Department of Veterans Affairs, 62 M.S.P.R. 530, 532 (1994)).

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, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have think you may have new evidence that would allow the full MSPB to reconsider a past decision of the MSPB, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

On June 20, 2008, the full Merit Systems Protection Board issued a decision that helped to clarify the rights of retired civilian federal employees under what are commonly referred to as “Catch-62″ provisions. Click here to read the decision in its entirety.
Civilian employees of the federal government who have served in the military may, by making a pre-retirement deposit, buy their post-1956 military service into their federal retirement annuity. By paying a percentage of their military earnings to their employing agency before they retire, Federal employees get the benefit of an increased annuity for the duration of their retirement.  However, if a Federal employee fails to make the deposit prior to retirement, their retirement annuity is reduced by OPM if and when they become eligible for Social Security benefits at age 62.

Chris Attig, a lawyer that represents retirees before the MSPB on Catch-62 appeals, says “The reduction is often much more than the retiree expects.   In some cases, the retiree’s income is reduced by $1000-$2000 per month.  This reduction hits retirees when they are least able to replace the income - particularly in a tight employment market or a recession.”

The biggest problem is that, even today, years after the passage of the Catch-62 provisions, employees are being ill-advised of the need for making this deposit or the failure of making the deposit.  MSPB lawyers at the Attig Law Firm, PLLC, have seen situations where HR and retirement personnel  have told employees that the age 62 reduction will be less than a hundred dollars a month - the reduction is more likely in the thousands per month.  They have told retirees that they will make up the difference in Social Security payments - a silly point given that the employee is losing thousands of dollars per month that they need not lose.  They have told retirees that they can make the deposit after they retire - this is flat out incorrect.  They have told retirees that nobody at the Agency knows how to calculate the deposit - without telling the employee how to contact individuals that can calculate the deposit.  In one fairly egregious case, HR and retirement personnel gave our client retirement forms dating back to 1982 (he was retiring in the early 1990’s), thus giving the employee no notice of the deposit rules, the need for the deposit and the consequences of the deposit.

Since the Federal Circuit Court ruled on the matter in 2006, the rule has been that if an Executive Agency commits “administrative error” and as a result of that “administrative error” the employee does not make the deposit,  the MSPB will order OPM to accept a late deposit and reverse the reduction in the annuity. McCrary v. Office of Personnel Management, 459 F.3d 1344, 1349 (Fed. Cir. 2006).  The question has always been what will rise to the level of “administrative error”.   The following situations are known to be administrative error: the Agency misrepresents the amount of the deposit, gives an inaccurate amount, or confuses the employee as to the amount of the deposit or the effect of any failure to make the deposit on the annuity recalculation.

The Board’s recent decision in Hendricks, in the view of this Firm, gives a more helpful understanding of the term “administrative error”.  The case reaffirmed the fact tthat military veterans are entitled to expect that the government will provide them with accurate answers to questions concerning their deposit requirements to enable them to make informed decisions on matters that may significantly affect their annuities.

Certainly this is not a ground-breaking decision for lawyers that practice regularly before the MSPB.  However, the decision in Hendricks will invariably help pro-se appellants, and attorneys who infrequently practice before the Board, to have a more clear and precise picture of what is required to persuade the MSPB to order OPM to accept a late deposit for post-56 military service.

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, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about Catch-62 issues, or OPM’s reduction of your retirement annuity at age 62, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

After a full day of hearing, and 3 months of negotiations, the Attig Law Firm, PLLC, secured a very favorable settlement agreement from a Federal Government Agency in a case before the MSPB. For confidentiality purposes, the name of the Agency will not be disclosed.

In this case, our client claimed she was coerced into accepting early retirement under a VERA/VSIP program while suffering from a mental incapacity that rendered her unable to make an informed decision to retire.

The Agency claimed that the client was a poor performer who accepted the VERA/VSIP to avoid being fired for poor performance.

After a full day of hearing before an MSPB Judge, the Agency agreed to settle the case. In general terms, the Agency agreed to reinstate the employee, “unwind” the VERA/VSIP, pay a lump sum in damages to the Appellant, and allowed the employee to continue in a new position with the Agency outside her old chain of command without any interruption of her service computation date.

This settlement took nearly 3 months to negotiate, due to the difficulty in unwinding a retirement action such as a VERA/VSIP, and is not be possible in every situation.

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, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about constructive retirement appeals, or negotiating complex settlement agreements with Agency attorneys, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

The Attig Law Firm announces a new fixed-fee service for MSPB appellants.  For a fixed fee, a lawyer with experience before the Merit Systems Protection Board (MSPB) will review, and advise you on, any written settlement proposal made to you by the Agency in your appeal.

If an Agency attorney has offered you a settlement proposal, you can bet that (s)he had a supervisory attorney review the agreement before it was sent to you.  As a pro-se Appellant, you don’t have the luxury of a team of experienced attorneys offering you insight into a settlement agreement that the Agency has just offered you.

The Attig Law Firm, PLLC, will review your settlement agreement for a small fixed fee.   For that fee, an attorney will review and evaluate the Agency’s written settlement offer, and spend up to thirty (30) minutes discussing the offer.  Our primary focus is to advise you whether the terms are reasonable given the goals you are trying to accomplish and/or whether there are any potential pitfalls, red-flags, or Agency “gotchas” in your settlement agreement.

In order to do this review, it will be necessary for you to have a written settlement offer from the Agency.  If you are interested in taking advantage of this service, and would like to have your Settlement Agreement reviewed by a lawyer with experience negotiating many dozens of settlement agreements before the MSPB, please send an email to the Attig Law Firm, PLLC, today.

We will send you more information, including a list of documents to send us as well as any fees, to the contact information you specify in your email.