Attig Law Firm P.L.L.C

WIGIs, or within-grade increases, are fairly routine increases in salary for GS employees.  They are typically earned by service in a particular grade for a particular period of time.  The WIGI is only earned if an employee has maintained an “acceptable level of competence” (ALOC) during the entire “waiting period”.
When an employee is denied a WIGI, they have a right to appeal the denial to the Merit Systems Protection Board (MSPB). However, the employee must first appeal through an Agency grievance process.

A federal employee who is denied their WIGI can almost assuredly expect that they will be facing some performance based action - placement on a PIP (Performance Improvement Period), removal or demotion - in the near future.  Thus, litigating the denial of the WIGI can be crucial to the employee’s future employment.

The WIGI appeal is what is called in legal parlance, a de novo review, (meaning from the beginning). The MSPB reviews the Agency’s decision to deny the WIGI from the beginning - looking in depth at the performance history of the employee over the waiting period for the WIGI.

The burden is on the Agency to show that the employee is not performing at an acceptable level of competence.   Ultimately, the Agency will have to show the existence of performance standards, and how the employee failed to meet those standards in order to prevail.  The burden is never on the employee to prove that their performance was acceptable.

Challenging a WIGI is almost always a financial setback for the federal employee in the short-term: the cost of litigating before the MSPB almost never equals the small increase in pay an employee stands to recover if successful.

However, many Federal employees fail to realize that it is often their own Federal government career which is truly at stake. in the long-term, challenging the denial of the WIGI may prove invaluable to preventing an Agency from taking a performance based action, or in developing a strategy to fight an imminent performance based action.

If you would like to discuss a recent denial of a WIGI with an attorney who practices before the MSPB, please contact the Attig Law Firm today.

Federal employees who are involuntarily separated, other than for misconduct or delinquency, and who have 25 years of service (or are 50 years old and have only 20 years of service) will be entitled to a Discontinued Service Retirement annuity.

The purpose of the discontinued service retirement is to cushion the blow to a federal employee who finds himself or herself involuntary separated from their Agency after investing years in federal service.
An involuntary separation includes any separation without an employee’s consent, or against the employee’s will - so long as it is not for “cause”. A “for cause” separation includes removals for misconduct or delinquency.

Here are some scenarios when a Federal employee may be eligible for a Discontinued Service Retirement:

• Reduction-in-force (RIF):
• Abolishment of position;
• Lack of funds;
• Expiration of incumbent’s term of office;
• Removal due to unacceptable performance (unless due to misconduct);
• Transfer of function outside commuting area;
• Reassignment outside commuting area when no mobility agreement exists;
• Failure to continue to meet qualification requirements of the
• position (provided the separation is non-disciplinary and the action is initiated by the Agency);
• Separation during probation because of failure to qualify due to performance (not misconduct);

As always, the rules and regulations surrounding retirement from Federal government service can be very complicated. If you would like to speak with an attorney from Attig Law Firm regarding your federal employment matter or MSPB appeal, please contact us today.

The MSPB has a little-known program known as the Mediation Assistance Program (MAP), wherein Federal Employees can attempt to negotiate a resolution to their MSPB appeal with their Agency.

In my experience, very few Agency attorneys have experience with, or even know of, the Mediation Assistance Program. This is unfortunate, because the program is probably one of the better mediation forums available to Federal employees.

Upon request to the Administrative Judge (preferably upon agreement of both sides), your case will be assigned to a qualified Board mediator. In my experience, this has usually been an Administrative Judge from a different region of the MSPB or a senior clerk with the MSPB. In one instance, I had occasion to work with an MSPB attorney on a matter being mediated while on appeal to the Full Board.

What makes this mediation process so much better than others is that the mediators seek to educate both Parties and their attorneys.  Too many mediators in the EEOC and other forums rush to find “common ground”, and typically only find “common discord”.  MSPB Mediators seem to have greater experience and training in evaluating the strengths and positions of both the Agency and the employee; as a result, they are better at helping both sides see the advantages to negotiating a resolution versus the disadvantages of going all the way to a hearing.

I recommend to all of my clients that they consider using the Mediation Assistance Program, if for no other reason than to explore creative solutions to their employment situation that they never saw before they filed the appeal. Not every case that goes to the MAP will actually settle, but the Parties will definitely leave the mediation much more aware of what may or may not happen at a hearing.

If the mediation is not successful, the case is returned to its original Administrative Judge, at which time all pending deadlines are re-calendared, and the case continues towards hearing.

If you would like to discuss your MSPB appeal with an attorney, or if you would like to discuss whether the Attig Law Firm can help you in mediating your appeal before the MSPB, contact us today.

The short answer - no; the MSPB does not have jurisdiction over appeals of position classifications. However, you can file a Position Classification Appeal with the Office of Personnel Management (OPM).

Here are some aspects of your position classification you can challenge: the grade, occupational series, and sometimes, the title of your position. You may also seek to have your general schedule (GS) position converted to the wage system, or vice versa.

Here are some things you may not challenge: the content or accuracy of your position description, classification of positions to which you are not officially assigned, or the classification of positions to which you are detailed or temporarily promoted.

You can file a position classification appeal with your Agency or OPM, but not both. It is often recommended that an employee making such a challenge should utilize their Agency’s administrative grievance procedure and, if not successful, appeal the Agency’s decision to OPM. Although different situations call for different strategies, the foregoing is a good general practice.

You are entitled to have a representative in your position classification appeal to the Agency or to OPM. If you retain an attorney, you will be responsible for your own attorney fees. There is no provision by which you can recover attorney fees for such an appeal.

If you would like to discuss your position classification appeal with a Federal employment lawyer, please contact the Attig Law Firm today.

This story about OSC Chief, Scott Bloch, is not nearly as funny as it is sad.

The Office of Special Counsel (OSC) is charged with, among other things, protecting Federal employees from retaliation for whistleblowing and from other “prohibited personnel practices”.  The OSC is tasked with investigating allegations of this sort and, in some situations, bringing an action against the offending supervisor/Agency before the MSPB.

Anyone who has experience with the OSC in this capacity might agree that the Office is just a “dog and pony show” and really doesn’t help the real Federal Whistleblowers.

The chief of the OSC, Scott Bloch, is himself under investigation for, among other things, committing the very prohibited personnel practices he is tasked with investigating.   According to this article at alternet.org, Mr. Bloch appears to be taking on Karl Rove.

Now, I’m of the opinion that Mr. Rove needs to be exiled to a distant and inaccessible island (preferably a volcanic one), and an investigation of his activities is long overdue.  One wonders though, is this just an attempt by Mr. Bloch to distract attention from his own personnel practices?

Perhaps Mr. Rove might convince his boss to open a new investigation on OSC. The OSC could then open another investigation of …. well, you get the idea.   At some point, it becomes clear that the OSC has become irrelevant.

In the meantime, those who need real protection - Federal employee whistleblowers - are lost in the shuffle.

Generally, the answer to the above question is yes.   However, the MSPB has laid out a test which will control whether or not a medical condition or illness can justify an untimely filed appeal.

The test is laid out in Lacy v. Dept. of Navy, 73 MSPR 434 (1998), and requires that an employee show three things:

(1) Identify the time period during which he suffered from the illness;

(2) submit medical evidence showing that he suffered from the alleged illness during that time period;

3) explain how the illness prevented him from timely filing his appeal or a request for an extension of time.

This is not as easy as it seems - the Board really wants the appellant to “connect the dots” so to speak.  Medical evidence does not necessarily include medical documents, and may include corroborating evidence of an illness.   However, the evidence should show the dates and durations of the illness.  Also, while there is no requirement that the illness be incapacitating, there should be a good explanation for how the illness prevented the Appellant from filing or asking for more time.

If you would like to discuss whether your medical illness might be good cause for an untimely filed appeal, contact an MSPB Attorney today.

[Practice Note: The Lacy test may be subject to attack by an Agency: in a 2006 case, the Board found that the Lacy test only applied because the appellant in that case was not informed of the specific test for securing a waiver on the Board’s time limit on the basis of physical or mental illness.]

The short answer to that question is “generally, yes”.

Disability retirement is available to Federal Employees who become disabled in the course of their employment. The disability need not have occurred while at work. 

Whether or not an employee is eligible for disability retirement depends on which Retirement System the employee works under.

CSRS employees must be employed for a minimum of 5 years and be no longer able to effetcively perform at their current grade or pay level due to a medical condition. 

FERS employees are eligible for retirement if the become disabled after completing at least 18 months of service. (As an aside, FERS and CSRS-offset employees must also apply for Social Security disability benefits or show that they aren’t eligible for those benefits).

To qualify for disability retirement, the employee must submit an application to OPM. The process will require substantial documentation of the medical condition, and involves working hand in hand with OPM to ensure that they have the information and documentation to give you the best possible decision.

If OPM rejects your application for disability retirement, you can request a reconsideration. If you do not request reconsideration, you will not be able to appeal to the MSPB. 

If you request reconsideration, be sure to raise every possible issue that supports your application to OPM in the reconsideration process.

FERS Employees: click here to follow a link to learn more about disability retirement benefits.

CSRS Employees: click here to follow a link to calculate your disability retirement annuity.

Be sure to read the Attig Law Firm Blog Series: 5 Steps to Disability Retirement, by clicking on this underlined text