Attig Law Firm P.L.L.C

Many federal employees find it necessary to enter a period of leave without pay (LWOP) to recover from a partial or total temporary disability. But what happens after the employee has fully recovered from that temporary disability?

Employees who have fully recovered from disability and can perform the duties of their prior position may have what are called “restoration rights”. That is, a federal employee has an absolute right of restoration to a former (or equivalent) position if that employee totally recovers from a temporary disability within 1 year of the injury. If the recovery takes longer than a year, the employee can get “priority consideration” in applying for a former position (or its equivalent).

The employing Agency must restore a federal employee who recovers within one year after beginning compensation. The Agency will need to verify that the employee received worker’s compensation payments during the absence, and the period that the compensation was paid, so that th employee may receive any rights or benefits that accrue based on length of government service.

If the employee has been terminated, and wishes to reclaim his or her job, they should contact the hiring Agency first, and then if that fails, OWCP will assist the employee in getting their old position back.

If the employee and OWCP are unsuccessful, then the federal employee may have an appeal right 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 attorney familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case.  If you feel you have been denied your restoration rights, contact an MSPB lawyer at the Attig Law Firm, PLLC, to schedule a telephone consultation.

One very serious situation for Federal employees are allegations that the employee misused a government credit card.

The scenario that commonly arises usually involve a government credit card or travel card holder who makes a purchase which is not authorized.  Most commonly, this type of discipline involves employees who allegedly purchase a personal item using their government credit card.  Other times, it involves charges on a card or cash advances that exceed the pre-travel estimation.

In any of these cases, the Agency is not required to prove that you actually intended to misuse the card - only that your use was not authorized. For example, the MSPB upheld a 30 day suspension for a 17 year veteran and supervisory employee who absent-mindedly used his government credit card to purchase a set of tires for his POV.

“Misuse” cases are notoriously difficult for an employee to overcome - particularly if they have notice of what types of purchases may or may not be permitted.   In one case, an employee’s removal was sustained because he purchased a single tank of gas for his POV on his government gasoline card.

Typically, the employee’s best chance in credit card misuse cases lies in the Douglas Factors.   When one employee showed that he had a long and unblemished career, and his supervisor had condoned his use of a government card to reimburse the employee for out-of-pocket travel expenses, the MSPB mitigated the employee’s removal to a 30-day suspension.

If you have been charged with misuse of a government credit card, travel card or gasoline card, you should consult with an attorney familiar with the MSPB before proceeding.   If you would like to consult with an attorney at the Attig Law Firm regarding your MSPB appeal or disciplinary action, please contact the Firm today.

If an Agency places an employee on indefinite enforced leave, the MSPB may have jurisdiction to review this action.

Typically, an Agency will place an employee on enforced leave, pending the results of a voluntary or involuntary application for medical/disability retirement, or in other scenarios where the Agency has questions (legitimate or not) about an employee’s medical inability to perform the essential functions of the job.

An Agency may place an employee on enforced leave pending inquiry to see whether he has become medially able to work. However, once an agency learns that the employee is fit for duty, the employee must be restored immediately to active duty status.

Enforced leave might be appropriate when the Agency believes that the employee’s retention on active duty could result in damage to federal property, or be detrimental to governmental interests, or be injurious to the employee, his fellow workers, or the public.

However, indefinite enforced leave is almost always tantamount to depriving the worker of a job, when there is no review other than the Agency’s own arbitrary choice to change its mind that the employee can perform his job.   This is even more true when the employee is ready, willing and able to work.

Consult an attorney familiar with the law and procedure of the MSPB and EEOC if you have been required to take a Fitness for Duty exam, or if you have been directed to take annual or sick leave or LWOP for an indefinite period of time.

The MSPB hears claims involving improper calculations of a federal employee’s military leave.  Each year, federal employees who serve in the National Guard or reserves are required to participate in annual training.  By Federal statute, those employees are to be given up  to 15 days of paid leave each year to attend that training.

Until around 2000, the Office of Personnel Management interpreted that rule in such a way that they offered only 15 calendar days of leave each year.  Federal Employees who served in the military were, in effect, being required to take paid leave for days they wouldn’t otherwise have had to work (e.g., weekends and holidays).
In a 2003 decision, the U.S. Court of Appeals for the Federal Circuit held that Agencies were not entitled to charge employees’ military leave for those holidays and weekends.  Butterbaugh v. Department of Justice, 336 F.3d 1332, 1333-34 (Fed. Cir. 2003).

If you serve or served as a military reservist and worked for the federal government, you may be able to recover paid leave that was charged erroneously by your employing Agency.  You will need a list of dates you believe were improperly charged as leave.

If you would like to speak to an MSPB attorney about your potential claim to recover paid leave taken as a result of military reserve training, contact the Attig Law Firm today.

When an Agency charges an employee with failure to follow instructions, they are required to prove certain facts:

1. An instruction or order was issued;
2. The Agency was entitled to have the instruction followed; and,
3. The employee did not follow the instruction.

It is important that the instruction to the employee be clear - enough to put the employee on notice that some action or inaction is required of them. For this reason, when the instruction is issued in writing (memo, letter, e-mail, handbook, etc.), the first element is rarely disputed. In situations where the instruction was issued orally, then proof of these facts is usually going to turn on the credibility of two witnesses: the person who claimed to issue the instruction and the person claiming not to have been instructed.

The second element is somewhat vague - a Federal Agency is entitled to have all proper instructions followed. What, then is a proper instruction? Generally, the Agency is entitled to have all instructions followed, unless following the instruction would place the employee in imminent danger or cause irreparable harm. These exceptions are few and far between - and the safest course of action for a Federal employee is to follow the instruction and grieve it later.

The third element is a fact-intensive examination. Many times, the Appellant or the employee feels that they have followed the instruction, or did their best to comply with the instruction. Sometimes, employees will argue that although they did not follow the instruction perfectly, they did not intend to do something wrong. This is an important distinction - the charge of “failure to follow instructions” does not require any proof that the employee intended to disobey or intentionally failed to follow the instruction. (By contrast, the charge of insubordination requires the Agency to prove that the employee acted with intent - willfully refusing to follow the instruction at issue). However, when an employee admits that they didn’t follow an instruction, but did not do so intentionally, the Board may consider this fact in determining whether or not to mitigate the penalty under the Douglas Factors.

[Practice Tip: Oftentimes, you can produce facts to help you by asking the Deciding Official (or Proposing Official in discovery or at hearing) why, if your misconduct was so severe, they didn’t charge you with insubordination. Rarely will a Deciding Official be able to satisfactorily answer this question, giving you an argument at closing that the misconduct was not as severe as the Agency wants the Judge to think.]

Sometimes, an Agency will charge an employee with a mixed-charge of “Insubordination/Failure to Follow Instructions”. When it does so, the Agency is generally going to be required to prove the heightened charge of insubordination. However, a lot will turn on the language in the specification for the specific charge.When you are charged with the misconduct of Failure to Follow Instructions, it can be very helpful to have an attorney review the proposal letter. Many Agencies are not careful in drafting their charges, and often include language that requires a heightened burden of proof.

If you would like to consult with an MSPB attorney regarding your charge of failure to follow instructions, please contact the Attig Law Firm today.

Not every employee can appeal an adverse action to the MSPB. Here is a brief list of who can make an appeal to the MSPB:

• Competitive Service employees who have completed a 1-year probationary or trial period;
• Veterans preference-eligible employees with at least one year of continuous employment in the same or similar positions outside the competitive service;
• Postal Service supervisors, and some employees engaged in personnel work, who have completed one year of current continuous service in the same or similar positions; and
• Excepted service employees, other than preference-eligibles, who are not serving a probationary or trial period and who have completed two years of current continuous service in the same or similar positions in an Executive agency

If you would like to consult with an MSPB Attorney to determine if you have an appeal right, contact the Attig Law Firm today.

To establish the elements of a performance-based removal action, the Agency again has the Burden of Proof. That is, the Agency must prove the elements of the removal - however, the burden is much lower than in misconduct cases.

In a performance case, the Agency must only prove their case by “substantial evidence”. This is the lowest burden of proof in the legal system. Essentially, it means that amount of evidence that a reasonable person would find necessary to believe the fact being question - even though other reasonable people might draw a different conclusion. Thus, as long as one Administrative Judge finds the Agency’s evidence substantial, it doesn’t matter that every other Judge might find it un-substantial.

The Agency must prove, by substantial evidence, that:

1. it has a performance appraisal system approved by OPM
2. it communicated the performance standards and critical elements of the employee’s position to the employee;
3. the employee failed to meet one or more critical elements of the employee’s position; and,
4. the Agency provided the employee a reasonable opportunity to improve his or her performance to an acceptable level.

The first element is almost always proved up in the Agency’s File. It is rare to find an Agency without an OPM approved appraisal system - although it could still happen.

The second element is usually a good point of attack - managers (especially federal managers, for some reason) don’t like to have “tough conversations” with employees about performance, and often fail to provide feedback or notice to the employee.

The third element is fact intensive. The Board will want to understand precisely how the employee failed to perform. If the Judge doesn’t fully comprehend the nature of your job, and how you worked to improve your performance, there is a good chance you won’t prevail.
The fourth element is different for every employee - what might be reasonable under one set of circumstances is not always reasonable under every set of circumstances. Thus, a reasonable opportunity for an administrative assistant to improve would likely look much different from a reasonable opportunity for a senior I.R.S. Revenue Officer to improve.

Because the Agency has such a low burden of proof in performance removal cases, it is much more important that you consult with an attorney sooner rather than later, if you intend to have an attorney represent you if/when you are removed. The Attig Law Firm likes to meet with employee as soon as they are given notice of the “PIP” or Performance Improvement Period.

If you would like to consult with an MSPB attorney regarding a performance removal or demotion action, contact the Attig Law Firm as soon as you receive the PIP letter.

In MSPB Appeals, the Appellant (employee) can assert “harmful error” as a defense to an Agency adverse action. Harmful error can be a difficult concept, even for many attorneys. Here is what it is, in layman’s terms.

First - a little background. Because Federal Employees are employed by the United States Government, they typically have a “property interest”, protected by the U.S. Constitution, in their continued employment. Thus, while private sector employees can often be fired for any reason or no reason, most federal sector employees cannot be removed from their job without basic “due process” required by the U.S. Constitution. That “due process” amounts to “notice and a hearing” - such as the MSPB Appeal process.

When an Agency does not provide the correct “notice” or “due process”, the adverse action can sometimes be reversed or mitigated. In order to succeed on this claim, the employee can assert the affirmative defense of “harmful error”. There are two parts to this defense: there has to be an “error”, and it has to be “harmful”.

In my experience, nearly every adverse action has some error in the notice or in the procedure. Sometimes the employee is not provided with notice of their MSPB appeal right, sometimes they are not provided with the specific grounds of the charges against them, and sometimes they are denied access to the material relied upon by the Agency in enacting the adverse action. Thus, it is often easy to meet the first part of the harmful error test.

The second part - proving that the error is harmful - is considerably harder. The essential proof is that the Administrative Judge must be convinced that the error “substantially prejudiced” the employee’s rights by possibly affecting the agency’s decision. In other words, an Appellant probably won’t prevail unless (s)he can show that but-for the error, the decision would have been different.

The difficult in proving “harmful error” should not be interpreted as saying that it cannot be proved. Consider these two cases:

Error was not Harmful - In this case, an employee had to wait 13 months between the proposal of removal and the Agency’s decision to demote him. The Agency conceded that 13 months was an error, but there appears to be no evidence which suggests how the employee was prejudiced, particularly since he was demoted and not removed. In other words, the delay in this case may have been to the employee’s advantage. Salter v. Dept. of Treasury, 92 M.S.P.R. 355 (2002).
Error was Harmful - In this case, an employee was demoted. In making the decision to demote the employee, the Agency relied on allegations of misconduct which were not mentioned in the proposal letter. Because the deciding official relied on these allegations, and because the Agency probably would not have demoted him if it did not consider these allegations, the demotion was reversed by the MSPB. Turner v. U.S.P.S., 85 M.S.P.R. 565 (2000).

If you would like to consult with an MSPB Attorney about your Harmful Error defense, contact the Attig Law Firm today.

For attorneys and pro-se appellants, understanding the MSPB Appeal Process can be a bit daunting. Here’s the various stages of your appeal, beginning with the Adverse Action Proposal Letter and continuing through an Appeal to the Full Board.

Proposal Letter: This is the most crucial document in the entire process - it proposes the action that the Agency wants to take. The letter should indicate that you may issue an oral/written reply, that you have a right to representation, and that you have a right to request the “material relied upon”.

Oral/Written Reply: This is your chance to show the Agency why they should not take the proposed action. Be careful at this stage - you don’t have to admit any misconduct or prove your innocence. Typically, unless there is clear and convincing exonerating evidence, it is often best to simply deny the misconduct, and discuss the Douglas Factors completely. Be sure to consult an attorney - how you approach an oral or written reply can later affect your strategy before the MSPB.

Decision Letter: After the proposal letter and any oral/written reply, the Agency will issue its decision letter. Most decision letters cannot be issued within 30 days of the proposal letter (there are, of course, exceptions to this general rule). The decision letter must contain certain enumerated rights, including an MSPB appeal right.

Penalty: Usually, the decision letter will state when the suspension or removal will occur. In rare instances, Agencies will “abate” the suspension or removal pending the outcome of any appeals. They might do this on longer suspensions and questionable removals where they could be liable for interest under the BackPay Act if the Agency cannot prevail at the MSPB.

MSPB Appeal: By visiting the Board’s website, you can download the forms to file an appeal. The Administrative Judge will send you and the Agency an “Acknowledgment Order” requiring the Agency to designate a representative and provide the Agency’s Evidentiary File within a certain number of days. Read all orders from the Administrative Judge very carefully, and be sure to scrupulously adhere to all timelines.

Agency File: This is the Agency’s chance to “pad the record”. Typically, an Agency File should contain all the evidence on which the Agency intends to rely to prove its case. Oftentimes, Agency attorneys will pad the record with information meant to embarass or later impeach a witness or the Appellant. Anything in the Agency File is guaranteed to be in the record - the Agency is unlikely to put information in the record that is harmful to their case, unless specifically required by the Judge.

Hearing Stage: After the Agency File is submitted, the Administrative Judge will set the timeline for the hearing through the use of a Scheduling Order. The Scheduling Order (sometimes included in or with the Acknowledgment Order) tells you key dates for your appeal: when to initiate discovery, when to present your Pre-Hearing Submissions, when to participate in the Pre-Hearing Conference and when/where the hearing will be held. There is so much information in the Scheduling Order - be sure to read it closely - more than once! The hearing itself is an administrative hearing, somewhat more structured than an EEOC hearing, but nowhere near as structured as a state or Federal Court trial. The MSPB records the testimony - if you later want a copy, you will have to pay for a transcript or a copy of the tapes.

Initial Decision:After the hearing (usually 30 - 90 days later) the Administrative Judge will issue its Initial Decision. This decision will contain your appeal rights - which can be complicated. The claims and defenses that were alleged will determine the appeal rights - you may have a right to file in Federal District Court, in the Federal Circuit Court, the EEOC, or file a Petition for Review with the Full Board.

Petition for Review: If you challenge the Administrative Judge’s decision, you may file a Petition for Review. The standard for prevailing on a PFR is very high for appellants - the record below has to be properly preserved, and there has to be a showing that but for an error at the hearing or in the Judge’s decision, the outcome would have been different for the Appellant. Usually, Agency’s do not appeal - there are limited scenarios where an Agency may file a PFR of its own. On even fewer occasions, OPM may intervene and appeal on behalf of the Agency (this is usually only when OPM feels that the decision of the Board will have a detrimental effect on a large number of federal employees).

Other Appeal Rights: In some situations, you may be able to file suit in a United States District Court, the Federal Circuit Court of Appeals, or the EEOC. These situations are too broad to discuss here.

Hopefully, this helped you get some idea of the life of an MSPB Appeal. If you would like to consult with an MSPB Attorney, please contact the Attig Law Firm today.

A question folks frequently ask when contacting my Firm is an explanation of the difference between a “disciplinary action” or an “adverse action”.

A “Disciplinary Action” is a suspension of 14 days or less, written letter of reprimand, or oral counseling. Aside from truly egregious misconduct, an Ageny will usually propose a disciplinary action before taking more serious steps. Disciplinary actions lay the groundwork for Agencies to successfully take an adverse action. In most Agencies, bargaining unit employees can challenge disciplinary actions through their negotiated grievance process or through the Agency’s grievance process. Supervisors and non-bargaining unit employees may challenge disciplinary actions through the Agency’s grievance process (if the Agency actually has one). No disciplinary action is appelable to the MSPB.

Adverse actions are suspensions of 15 days or more, downgrades, demotions, and removals. (Constructive actions - constructive suspension or removal, involuntary resignation or retirement may be adverse actions, but more on that another day). All adverse actions are appealable to the MSPB - so long as the employee has MSPB appeal rights.

If you are not sure if you have MSPB Appeal Rights, or if you would like to speak to an MSPB attorney about a proposed disciplinary or adverse action, contact the Attig Law Firm today.