Attig Law Firm P.L.L.C

Over the next couple days, I want to briefly discuss the 3 major orders you will receive from your Judge in an MSPB Hearing.  They are: 1) the Acknowledgment Order; 2) the Scheduling Order; and 3) the Pre-Hearing Summary.  There are a few other orders, butI will only talk about the big ones right now.

1) Acknowledgment Order  -You will receive this order within 3-14 days after filing your MSPB appeal.  The Order contains the Judge’s initial instructions to both sides about how to file Motions, when to initiate discovery, when the Agency’s File is due (and what should be in it), and some other instructions and guidance.  Read this order very carefully, and highlight any mention of dates in it.  While these orders are fairly similar from Judge to Judge, I have noticed some differences.

2) Scheduling Order - When you receive this Order depends on the particular MSPB Judge in your case.  Some Judges send them out immediately after the Acknowledgment Order; others wait until the Parties have had a chance to do some discovery or discuss settlement.   Regardless of when you receive it, this  Order will contain a lot of important dates about your MSPB hearing.  It will set times for status conferences, the pre-hearing conference, deadlines for pre-hearing submissions and will set the time and date for the hearing.

3) Pre-hearing Conference Summary.  This is probably the single most important document in your MSPB Appeal.  It tells you what issues you will need to prove, who you can call as witnesses, and what documents (outside of the Agency File) you can offer in evidence.  Though an MSPB Judge may not allow all of your witnesses or documents, you have a great deal of control over this document by investing the time to properly prepare your Pre-Hearing Submissions.  How this order turns out could have a dramatic effect on your MSPB Appeal.

If you have questions about your MSPB appeal or an order you receive from an MSPB Judge, it may be helpful to consult with an attorney who practices before the MSPB.  If you ever realize you are in over your head, contact an MSPB lawyer to see if he or she can help you with your appeal.

From time to time, I will review a selection of MSPB Initial Decisions.  This weekend, I reviewed 52 cases in which an Initial Decision of the MSPB was issued between June 29, 2007 and July 6, 2007.

The first noteworthy point is that the MSPB issued 52 Initial Decisions in one week.   That is a lot of decisions, but it’s probably about average - maybe even a little on the low side (based purely on my periodic observations).   It helps to explain, though, why the MSPB doesn’t have much patience for untimely appeals and appeals over which they have no jurisdiction.

Here are some interesting numbers to consider:

• The Agency’s action was upheld 15% of the time. (8 out of 52 appeals)
• The Appellant prevailed only 2% of the time (1 out of 52 appeals)
• 44% of the cases settled.  (23 out of 52 appeals)
• 39% of the cases were dismissed (20 out of 52 appeals).

Of the 20 cases dismissed, 9 were dismissed because the MSPB lacked jurisdiction.  6 were dismissed without prejudice towards refiling.  4 were withdrawn by the Appellant, and 1 was dismissed as untimely filed.

What these statistics suggest, even though they are a small sample, is that the employee’s best chance for a favorable outcome is usually in settlement.  This is one reason our Firm tells its clients that ignoring a reasonable settlement offer from an Agency is a sure-fire way to lose your appeal. Read our Blog entry on the topic by clicking here.

In far too many of the cases, the Appellant went unrepresented by an attorney.  A lawyer familiar with the MSPB practices and procedures can improve your ability to negotiate a favorable settlement, can improve your ability to present a persuasive legal argument to an Administrative Judge, and may spot legal issues in your case that you didn’t know existed.  Contact an MSPB lawyer today to discuss your MSPB appeal.

Even after you appeal to the Merit Systems Protection Board (MSPB), your case may be dismissed for “lack of jurisdiction”.  This simply means that the MSPB does not have the authority to hear your appeal.

Here are some examples of situations where the MSPB lacks jurisdiction:

• The MSPB does not have jurisdiction over employees whose positions have been specifically excluded.  You can see a list of 12 government “positions” that do not have the authority to appeal adverse actions to the MSPB at 5 C.F.R. § 752.401(d)(12).
• The MSPB lacks jurisdiction over voluntary resignations.  The MSPB may hear cases alleging involuntary resignation.  A resignation may be involuntary if it  is the equivalent of a discharge or if the individual lacked the mental capacity to make a rational decision.
• The MSPB lacks jurisdiction if the Agency’s action is “moot”.  When the Agency completely rescinds its action and restores you to the status quo ante - which it may do anytime up until the decision of the Administrative Judge - there is no more appealable adverse action.
• The MSPB lacks jurisdiction when an employee fails to allege an appealable action. For example, a lateral transfer or reassignment that does not result in a loss of grade or pay is not appealable to the Board
• The MSPB lacks jurisdiction when an employee fails to allege a necessary element  of a claim. For example, if you file a “restoration rights” appeal, but do not allege that you have an on-the-job injury compensable through OWCP funds, your appeal may well be dismissed.
• The MSPB lacks jurisdiction when an employee fails to make a non-frivolous allegation of reprisal under the Whistleblower Protection Act, or failure to exhaust administrative remedies under that act.

These are not the only circumstances under which an appeal can be dismissed for lack of jurisdiction, however, they are some of the more common reasons.

If you have any questions whether the MSPB has jurisdiction over your appeal, it is best to contact a lawyer familiar with MSPB practice and procedure.

Office of Personnel Management (OPM) has proposed rules to authorize the Agency to process retirement and health and life insurance applications, notices, elections, and records under the agency’s Retirement Systems Modernization (RSM) project.

The rules would affect how benefits are managed under the Civil Service Retirement System (CSRS), the Federal Employees’ Retirement System (FERS), Federal Employees’ Group Life Insurance (FEGLI), Federal Employees Health Benefits (FEHB) and Retired Federal Employees Health Benefits (RFEHB) programs.Under the new rules, GSA employees would be the first of several waves of conversions to the system, beginning in February 2008. It appears OPM would like the system to be available to all Federal employees by February 2009.

One substantive change identified in the rules: employees (or survivors) would have 35 days from the date of their notice of retirement to change any survivor benefit elections. Current regulations set the deadline for changing survivor elections to the date of the first regular monthly payment or final adjudication.

You can read the new rules by clicking on this link. If you care to comment on the new rules, you must do so by September 17, 2007.

There is no greater feeling than being able to call a client and tell him he has been exonerated by a Judge. I had the opportunity to experience that feeling again on Friday. After a hearing before the MSPB, our client’s 30 day suspension for alleged misconduct was completely reversed by an initial decision of the MSPB.

Our client, a long time supervisor with the Department of Energy (NNSA), had been accused of being involved in the release of interview questions to an interviewee in a selection decision for a vacancy announcement that occurred over two years earlier. After a cursory internal “investigation” by management, the Agency hired a third party investigator, (GenQuest, Inc.) to conduct a “fact-finding” investigation.

After the GenQuest investigation, Agency management concluded that our client was involved in the release of interview question, and charged him with failure to follow instructions, conduct unbecoming a supervisor and lack of candor. It is still unclear what evidence formed the basis of that conclusion. The MSPB agreed, and on one occasion, cited some significant procedural and substantive flaws in both the management and the GenQuest, Inc., “investigations”.

The Board held that the Agency did not sustain a single one of the 8 specifications in the 3 charges, completely exonerating our client. Because the Agency did not sustain a single charge or specification, there was no need for the Judge to consider the Douglas Factors. The Agency has been directed to cancel the suspension, reinstate our client to his supervisory position, and pay him the appropriate back-pay and interest.  (As of December 2007, the client has received his back-pay, has not received the interest on the back-pay, and is contesting the Agency’s argument that they do not have to restore him to a supervisory position).

The  decision is just an initial decision and will not be final for approximately 30 days.  (In September 2007, the Initial Decision became a final decision of the Board when the Agency chose not to appeal the findings of the Administrative Judge).  We congratulate our client on his victory and exoneration!

If either of these cases sounds like you, please contact the Attig Law Firm, PLLC:

1) On behalf of a spouse who was a federal employee, you utilized your Power of Attorney, Durable Power of Attorney or Statutory Power of Attorney to elect your spouse’s right to an Alternative Form of Annuity (AFA).

2) On behalf of a spouse who was a federal employee,  you utilized your Power of Attorney, Durable Power of Attorney or Statutory Power of Attorney to file an optional or immediate CSRS or FERS retirement on behalf of your spouse.

If either situation applies to you, and OPM denied your right to elect an AFA or your right to retire your spouse, the Attig Law Firm, PLLC, would like to hear from you.

Please send us an email or give us a call today at (214) 891-5960.

756 homers in a career is an amazing accomplishment, and it was amazing to see the home run (from my hotel room) and watch history in the making.

I hope - though I know he won’t - that Barry goes on to hit 856 home runs, to silence all the critics (many of whom never played the game) that think that anyone or anything besides Barry’s exceptional skill and talent is the cause of this record.

Congratulations, Barry!

This Washington Post article highlights another potential change in the federal workforce.  This proposed change would require more federal managers to allow their employees to work from home.

This is going to be a tough sell to an entire generation of managers.  Back in the day when I was a government attorney, I suggested the idea that we E-file our appeals to the Merit Systems Protection Board (MSPB).  My boss nearly stroked out, suggesting that “the Agency” was not ready for the change.    You can’t imagine the paperwork we had to fill out if we wanted to work from home.  The poor guy just couldn’t let go of the control he had in physically seeing his employees as they worked.

My point is not to bash a particular generation of federal managers.  My point is that federal employees who are comfortable with the  concept of telecommuting and telework should expect to see a lot of federal managers who are not comfortable with the concept regain their “control” by taking more frequent and more baseless disciplinary and performance actions against their employees.

I’m all for telecommuting or telework - it’s time is past due.  In most federal jobs, there is very rarely a need for a particular employee to work from a particular cubicle, and the government wastes a lot of money in property leases and energy costs that are wholly unnecessary.  I’m just concerned that management at many of the more anachronistic agencies aren’t ready for the change.

If you  have been disciplined for conduct or performance relating to your work-from-home arrangement, contact the Attig Law Firm today.

This Washington Post article details some recent efforts in Congress to enhance leave options for Federal Employees who have a child, adopt a child or who have health conditions requiring treatment.

I encourage you to write to your Congressional representative and encourage him or her to back the Maloney-Hoyer-Davis proposal.  In all likelihood, it probably won’t pass into law without a Democrat in the Oval Office - the son of George Bush and his administration seems to think that the Federal government is already doing great things for the families of federal employees.

I am hopeful that there is soon some reform of the Family and Medical Leave Act - employees and managers both seem to have difficulties following its requirements, particularly the requirement of a “medical certification”.

Most Federal managers use the medical certification as a tool to block FMLA leave requests by making the medical certification so tedious and onerous that doctors often don’t understand what the Agency wants. Most employees simply don’t understand what type of information management wants in these certifications, and how to balance management’s need for some information with their own right to privacy.

What usually happens is that if a manager thinks the medical condition is serious, the employee gets time off.   If the manager doesn’t think the medical condition merits time off, then the employee either stays at work or is charged AWOL.  This sort of game leads to a lot of difficulties, including discrimination and disparate treatment - particularly for employees with mental health conditions.

Contact the Attig Law Firm if you have had problems working with Agency managers in your requests for FMLA.

After reading a couple recent MSPB decisions, I thought it might be helpful to briefly address a less than well-known case in MSPB jurisprudence - the Bruner presumption. Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed.Cir.1993).
When a Federal agency removes an employee for “medical inability to perform the essential functions of the job”, that employee is presumed to be eligibile for disability retirement upon timely application to OPM. Now, that doesn’t mean the employee’s disability retirement is automatically approved - instead, it means that if OPM is going to deny disability retirement, the burden is on OPM to show that the employee is not eligible for that benefit. Normally, it’s the other way around - the employee carries the burden of proving his or her eligibility for disability retirement.

Why is this important? A couple of reasons.

The big one is this: Bruner is good fodder for pre-appeal settlement discussions with an Agency. Sometimes, when an employee is able to show that there is a connection between a medical condition they have and specific performance/conduct deficiencies, then the employee might be able to persuade the Agency to substitute an AWOL or other misconduct/performance removal with the “unable to perform the essential functions” removal.

This early action benefits the Agency - by settling the case pre-appeal (on grounds of removal that the employee will agree to), they save the time of litigation and the risk of having the employee reinstated. This usually benefits the employee - if they truly cannot perform the essential functions of the job because of the medical condition, then the employee typically can secure disability retirement through OPM.
A word of caution to employees: before you make this negotiation on your own, get sound legal advice from a lawyer who knows the regulations and case law in the area of federal employee representation. A less than well-intentioned (or less than knowledgeable) Agency representative may take advantage of a pro-se employee and you could end up with neither an MSPB appeal of your removal nor disability retirement benefits.