Attig Law Firm P.L.L.C

Click here for this link to PostalReporter.Com

We were told about the site by a Friend of the Firm.  Though the site is dedicated primarily to postal workers, it has some really good case summaries - in 10 minutes of reading, I flagged a couple cases that I hadn’t yet heard about.

Here’s the link if you prefer to cut and paste:
http://www.postalreporter.com/legal_briefs_archives.htm

Continuing in this thread on “10 Ways to Lose an MSPB Appeal”, I will talk a little about themes. I think this particular tip “having a theme to your case”  will help you more than not having a theme will hurt you.

Think about it. The MSPB hears thousands of cases each year. Each administrative judge probably handles hundreds of cases, and dozens go to hearing for each judge. After a while, every case starts to sound the same to an Administrative Judge. After all they are human, too.

So make your case stand out. Use a theme.

A theme is the glue that holds your case together; it is what makes your audience identify with what is really going on in your case, beyond all the legalese, beyond all the arguments over facts and witnesses and evidence, a theme is what helps your audience make sense of it all. When you present a lot of unconnected facts to a Judge, it’s harder for them to piece it all together and understand what’s going on. After all, the Judge is only seeing your case for 2-3 days, while you’ve lived it for 2-3 years.

Here’s an example of a theme. In a recent case, my client was one of many employees allegedly involved in some very minor misconduct. But the Agency had egg on its proverbial face, and needed to punish someone. My client, the most senior of the group, was the one who was singled out - and her punishment was excessive. We used a theme of the “fall-guy” or”scape-goat” - someone had to take the fall for the alleged misconduct. I tested the theme at the oral reply, and I’m convinced it helped to mitigate the imposed discipline. How did I know? In reading the decision letter, the Deciding Official was using my presentation of the facts to explain his decision. As we go forward to the MSPB, I’ll tweak my theme a little; I prefer positive themes, but the example illustrates the potential power of a theme.

Use a theme properly and it will turn your appeal into a story; most people, including Judges, are more receptive to stories.

The seventh of “10 Ways to Lose an MSPB Appeal” is to fail to timely submit relevant documents prior to the hearing.

When you receive the Acknowledgment Order and/or Scheduling Order from the Judge, usually within 14-30 days of filing your appeal, there will be a section in either or both of those Orders directing you to produce “Pre-Hearing Submissions” to the Administrative Judge. Typically, Judges require this document 3-10 days before the Pre-Hearing conference, but read your Acknowledgment and Scheduling Order to be sure. The Pre-Hearing Submissions will include, among other things, a list of documents that either party would like to use as evidence at the hearing.

If you have a document that you might like to use, put it on the list. There is no requirement that you use it, but if you had, or could have had, the document in your possession in your control at the time of the Pre-Hearing Submission deadline, 99% of all Judges are either going to not allow you to admit the document or are going to give the document no evidentiary value.

The reason that this rule exists is to prevent “trial by ambush”: both sides should be able to know the other side’s evidence before the hearing. The rule cuts in favor of Appellants as much as (or more than) it cuts in favor of Agencies, so don’t complain that it is not fair.

As a former Agency Counsel, it was painful to watch an Appellant, who had a document that might have helped his or her case, have the document excluded from evidence because they didn’t follow the rule. (Rest assured that an Agency Counsel won’t push this issue unless they are sure the document is harmful to their case.)

If you feel strongly that the Judge should consider the late or un-filed document, don’t argue with the Judge - you won’t win. Ask for a reconsideration of the Judge’s decision, ask for a clear ruling stating that the admission is denied, and make an “offer of proof”. This will preserve the error for a petition for review to the full Merit Systems Protection Board, if the document turns out to have a significant effect on the outcome of your case.

To be eligible for a disability-retirement annuity under FERS, you must be able to show that:

1. Eligibility. You completed at least 18 months of creditable service in a position subject to FERS,
2. Disability. You became disabled because of a medical condition, resulting in a service deficiency in performance, conduct, or attendance (if there is no such actual service deficiency, the disabling medical condition is incompatible with either useful and efficient service or retention in her position)
3. Continuity. The disabling medical condition is expected to continue for at least 1 year from the date the disability retirement application is filed;
   Accommodation of the disabling medical condition in the position held must be unreasonable; and
4. Reassignment. You must not have declined a reasonable offer of reassignment to a vacant position.
5. Appeal. If your initial request and request for reconsideration were timely, and were denied by OPM, you may have an appeal right to the Merit Systems Protection Board (MSPB).

These elements are outlined in full at 5 C.F.R. § 844.103. By far, the second element is the most difficult to prove. If OPM denies your application and your request for reconsideration, the Merit Systems Protection Board can consider all of the following in making the determination required by Element #2.

The most important part of this type of appeal to the MSPB is the medical evidence you present to the Board.

The Judge can (and will) consider: objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, and any other evidence relating to the effect of the applicant’s condition on her ability to perform in the grade or class of position last occupied.

If you fail to submit this medical evidence, it won’t be the sole reason for the MSPB upholding OPM’s denial of your disability retirement, but it will be a reason in the analysis. Moreover, your subjective evidence of disability and pain (i.e., written statements and testimony) will only be given evidentiary weight when it is supported by competent medical evidence.

For that reason, our Firm recommends a well-prepared medical analysis of your condition and its effect on your ability to perform the job duties of your position.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee retirement issues to discuss the facts and law of your particular case. If you have questions about your eligibility for OPM disability retirement,  contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

In a decision issued this past Wednesday, the Federal Circuit Court of Appeals held that an employee who has been indefinitely suspended has two separate MSPB Appeal rights.  The first is the right to challenge the imposition of the indefinite suspension, and the second to challenge the continuation of the indefinite suspension.  Rhodes v. Merit Systems Protection Board, Fed. Cir. No. 2006-3340; MSPB Docket No. NY-0752-06-0015-I-1 (May 23, 2007 ).

In Rhodes, an employee was indefinitely suspended for a criminal indictment that occurred off the job.  He filed a grievance through his Union, challenging the Agency’s decision to put him on an indefinite suspension.  The grievance was withdrawn after the employee was found innocent of the criminal charges.  Mr. Rhodes immediately brought his challenge to the Agency’s failure to reinstate him from the rolls  - 5 weeks after the criminal acquittal - to the MSPB.  An Administrative Judge dismissed the case for lack of jurisdiciton - the MSPB said that the employee already grieved the indefinite suspension and doesn’t get two bites at the proverbial apple.

The Federal Circuit disagreed.  The Court found that an Agency’s failure to terminate an indefinite suspension gives rise to an MSPB appeal right - separate and distinct from the appeal of the Agency’s decision to impose the suspension in the first place.  “A condition…must exist that terminates the [indefinite] suspension”, the Court’s decision reads.

You can read the whole decision by clicking here: Rhodes v. Merit Systems Protection Board.  Congratulations to the National Treasury Employee’s Union (NTEU) for their successful argument on this case.

I’ve already posted on why the Oral Reply may be the most important part of the MSPB appeal process. (Click here to read “The Oral Reply - the Most Important Part of Your Appeal” ). In this post, I am continuing my discussion of “10 Ways to Lose an MSPB Appeal”. One sure way to help yourself lose before the MSPB is to fail to deliver an Oral Reply.

The other day, I delivered an Oral Reply on behalf of an employee whose removal has been proposed for a variety of reasons. The Deciding Official was smug and indifferent, often times refusing to answer questions I had about the Agency’s charges by becoming pugilistic and unreasonable.

The client and I knew from the outset that the Deciding Official had made up his mind before we opened our mouths, and that the Oral Reply was only going to be used to lay the foundation for several arguments later. We specifically identified the only material relied upon that had been provided, so the Agency can’t spring new information on us later. We clarified statements in the proposal letter that will illustrate, to the Judge, the severe charging flaws in the proposal letter. And, as a bonus, the worst part of the Deciding Official’s personality came out — on the record.

We knew from the outset that the Deciding Official would not change his mind. I don’t know for sure if what we did will help us win before the Merit Systems Protection Board. But what I do know, is that by fixing the Agency to its story and by drawing out the personality of the Deciding Official, our argument to the Board just got a shot of steroids.

In any proposal letter, there should be a section that allows you to request the “material relied on” before responding to the proposed action.  It is important that you request this information, for many reasons.  One of the biggest reasons is that it is much harder to get the information from the Agency in the discovery process before the Merit Systems Protection Board (MSPB).

Often times, Agencies do not provide the material relied upon – they provide some information to support their charge. What then, are some examples of “material relied on”?  Here are some common items that you should ask for:

• Official Personnel File (OPF)
• Employee Performance Folder (EPF)
• Drop files maintained by your manager
• Copies of any email correspondence supporting facts raised in the proposal
• Complete printed copy of the Collective Bargaining Agreement
• Complete printed copy of any policies or regulations referenced in the proposal
• A copy of your position description
• An organizational chart (with names and numbers, this document can be extremely helpful to your attorney)
• Copies of all relevant time sheets (if your action involves time, leave or attendance)
• A copy of the Agency’s penalty guide
• Documentation showing penalties for other employees charged with the same misconduct.
• List of individuals involved in the decision to propose the Agency’s action
• Much, much more.

If you ask for this information, and it is not provided, and your Deciding Official then uses it in making their decision, they might commit harmful error, depending on the particular circumstances of your case.  It’s best to consult with an attorney if you think that you have not been provided all of the material relied upon by your Agency.

In our continuing discussion, “10 Ways to Lose an MSPB Appeal”, I would like to turn to a common problem in Merit Systems Protection Board (MSPB) cases - employees want to use their MSPB appeal (or EEOC case) as a tool to get revenge .

By the time most federal employees get in touch with my Firm, they have been pretty substantially harmed by their Agency. This occurs in any number of ways: they’ve lost their job (and as a result, their salary and sometimes their home), they’ve been embarrassed at work by being made the example for violating some minor rule or procedure, they’ve had to take substantial sick leave or annual leave to respond to the Agency’s allegations - the list goes on.

So, I suppose it is natural to be angry and want to get even. The employee want their manager disciplined or fired. They want a large monetary settlement to make up for all the pain and suffering. And sometimes, they just want the attorney to embarrass their manager.

But in the MSPB - and in any litigation - revenge is a dangerous motive. First, it consumes the person who is trying to extract a measure of revenge. It wears that person down, emotionally and physically. Second, and more importantly, it blinds the appellant from the weak points of their case. By the time they realize their case has a weak spot, it’s usually too late to address the problem.

I advise my clients who find themselves in this situation to focus their energy on the facts of their case. After all, it is facts that win cases, and proving the facts of the case to the Administrative Judge gives the Appellant the best chance of prevailing. That may be the sweetest revenge - winning your case and getting the relief to which you are entitled.

Federal employees succeed less than 20% of the time in their hearings before the MSPB. Why make it harder by using the hearing process as a tool for revenge?

Usually, this is one of the first questions our Firm is asked when contacted by a potential new client. Here are some different examples of the attorney fees and costs an appellant might incur litigating their case before the Merit Systems Protection Board (MSPB):

• Hourly-Retainer: This is probably the most common type of fee arrangement between attorneys and federal employees. The appellant deposits an agreed upon sum of money, and the attorney places that sum in a client trust account. As the attorney works the case, the attorney bills her hourly rate against the Client’s trust account. My Firm has found that the average case can take around 125-150 hours to get to trial. This can cost the appellant anywhere between $25,000 - $40,000 in attorneys fees just to get to hearing. And attorney fees are not always recoverable (click here to read more).
• Contingency Fee: In this fee structure, the attorney is awarded a percentage (typically 30-40%) of the monetary award an appellant recovers. Almost no practitioners before the MSPB accept cases on contingency. Why? As discussed above, an attorney can lay out between $25,000 and $40,000 to get a case to hearing. Very few MSPB cases are worth $75,000 - $120,000 - the amount an appellant would need to win at hearing so that the attorney breaks even.

The Attig Law Firm uses a method called a “true-retainer” in pricing its services. The Appellant pays the Firm a fixed amount to cover the portion of the Firm’s overhead for the time that it will take to litigate the case. This method can result in substantial out-of-pocket savings to most appellants before the MSPB. Read more about our fees here. To discuss this type of fee structure, or to discuss your MSPB appeal, contact us for a consultation today.

Continuing in our series on “10 Ways to Lose an MSPB Appeal”, today we will discuss a common way to shoot yourself in the foot. Ignore a reasonable settlement offer.

A common misconception about settlement is that it means you are giving in. This is not true. Settlement is a way for two parties to put a dispute behind them by finding some middle ground. The Agency won’t get everything it wants, and the Appellant usually won’t get everything he/she wants. Many times, though, if you approach settlement properly, you can make a pretty good deal for yourself.

Here’s how to approach settlement negotiations in the Merit Systems Protection Board (MSPB). Take a sheet of paper, and draw two columns. Mark the first column “Full Relief” and write down everything that the MSPB can award you if you prevail in your case. Mark the second column “Total Loss”, and write down everything you will get if you lose your appeal; this is usually a big Zero.

This has given you the range of settlement you have in your case. Any settlement offer that falls in between the two is reasonable, and you should consider it. Whether or not you accept it depends on a lot of factors: the actual strength of your case (what a neutral third-party thinks, not what you think), the hassle and headaches of litigation, your goals in taking on an Agency, and whether or not the offer achieves those goals.

One point that a lot of litigants forget is this: There is nothing that says that you have to go all the way to hearing to prove your point, or accomplish what you set out to accomplish. But you must know what it is you are trying to accomplish. Whether you want to preserve your retirement benefits, want a clean record, or just want back-pay plus interest, it is vital to know, from the beginning, what it is you would like to get out of litigation.

Very few people can really comprehend the physical, emotional, psychological and professional strain and stress of litigation until they are too far into the process. By that time, the opportunity to get what they wanted has usually passed. Every time I talk to a potential new client, I ask this question: “If I could give you what you wanted right now to make you walk away from litigation, what would it be?” After refining that goal to something that is achievable, our Firm sets out to get you that result as quickly as possible.

Finally, nobody says you have to accept a settlement offer - and our Firm will not settle a case without a client’s agreement. We will give you a candid assessment of the offer, tell you whether it’s good, bad or average, whether we think you can do better at hearing, and advise you whether or not to accept the offer.

All we ask is that you give serious consideration to every reasonable offer the Agency makes. Many times, but not always, the earliest offer is the best offer.

If you are not sure of the pros and cons of the Agency’s settlement offer, contact an attorney who has experience with federal employees and the MSPB. If you don’t, you may find yourself without any chair when the music stops, particularly if you thought your case wasn’t as strong as you thought it was.

The Attig Law Firm offers settlement consultations at a fixed-fee price)
We’ll review your case and settlement offer, and if necessary and possible, we can help you negotiate your deal and sometimes negotiate a better deal.