Attig Law Firm P.L.L.C

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.

In the course of your Merit Systems Protection Board (MSPB) or Equal Employment Opportunity (EEO) hearing, you should be told, by the Judge, of your “burdens of proof”.  This phrase is a legal term of art.  If you can understand your “burden of proof”, you will really have a good advantage.  You can structure your case on arguing that you met your burden of proof, or that the Agency failed to meet its burden of proof.

The Burden of Proof is made up of two separate burdens: the Burden of Production and the Burden of Persuasion.  The Burden of Production is the duty to produce factual evidence - whether documentary or testimonial - to the finder of fact (in this case, the Adminstrative Judge).   The Burden of Persuasion is the duty to convince the finder of fact to view the facts that were produced in a certain way.

Here are the legal standards for several legal burdens that you will run into in the MSPB and the EEOC - be forewarned, however, there are more than those listed here.   You can read more about Burdens of Proof at 5 C.F.R. 1201.56

Clear and Convincing Evidence: Here is the definition the MSPB uses: that degree of evidence that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established.  Essentially, this means that it is substantially more likely than not that the disputed fact is true.  The Agency typically has this burden of proof in a whistleblower reprisal case.  Once an Appellant has shown, by a preponderance of the evidence, that the Appellant’s whistle-blowing was  a contributing factor in the personnel action at issue, the Agency can only prevail by showing clear and convincing evidence that it would have taken the adverse action at issue regardless of the Appellant’s whistle-blowing.  You can imagine how difficult this is for an Agency - since you have already convinced the Judge that it is more likely than not that your whistleblowing contributed to the personnel action, it is going to take an awful lot of evidence to convince a Judge to break that connection.

Preponderance of the Evidence:  That degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient o find that a contested fact is more likely to be true than untrue. This is usually the Agency’s burden in any adverse action case before the MSPB.  It is the Appellant’s burden in any discrimination claim before the EEOC or MSPB (in a mixed case), and the Appellant’s burden in any affirmative defense (whistle-blower reprisal, etc).

Substantial Evidence: That amount of evidence that a reasonable mind would accept as adequate to support a particular conclusion - even though other reasonable minds could reach the opposite conclusion.   This is the Agency’s burden in a performance removal/demotion case.  It is a relatively light burden - the Agency doesn’t have to show that their conclusion is right, and you won’t win if you show that the Agency’s conclusion is wrong.  The Agency need only show that their conclusion was reasonable.  Notice the difference between preponderance and substantial - substantial evidence has nothing to do with whether or not the Agency’s conclusions were true or untrue - only whether they were reasonable. Preponderance, on the other hand, has nothing to do with the reasonableness of the Agency’s conclusion - only whether it is more likely than not true or untrue.  Your defense in a substantial evidence case should be designed in such a way as to persuade the Judge that the Agency’s conclusion is unreasonable.

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 or a lawyer familiar with Federal employee EEO complaints to discuss the facts and law of your particular case. If you have questions about the burdens of proof in your MSPB appeal or EEO Complaint, contact an EEO and MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

One of the most challenging aspects of Federal employee employment law is the concept of the “mixed case”.    The rules and procedures governing a “mixed case” are so complicated that this post does not seek to explain the “ins and outs” of every situation that could arise in a mixed case.  This post only seeks to explain generally what a mixed case is and how a mixed case should be handled.

So let’s start there. What is a “mixed case”?   A “mixed case” occurs when you have the statutory right to challenge an Agency action in two forums with overlapping jurisdiction - the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board (MSPB).  If an Agency takes an adverse action which is appealable to the MSPB, and you want to allege that action was motivated by improper discrimination or reprisal for protected EEO activity, then you have a mixed case.  In a mixed case, you have the right to choose which forum you want to raise your claim in first - the MSPB or the EEOC.   If you first challenge the mixed-case action in the EEOC, you have what is called a “mixed-case complaint”.  If you first challenge the mixed-case action in the MSPB, you have what is called a “mixed-case appeal”.  The only difference in the two processes is the path they take to get to a ruling by the appropriate judge. Let’s discuss that in more detail.

Mixed Case Complaint -  MD 110, Chapter 3, defines a “mixed case complaint” as a “…complaint of employment discrimination filed with a Federal agency based on race, color, religion, sex, national origin, age, handicap, or reprisal related to or stemming from an action that may be appealed to the Merit Systems Protection Board (MSPB). The complaint may contain only an allegation of employment discrimination or it may contain additional non-discrimination allegations that the MSPB has jurisdiction to address.  If you file a mixed case complaint, the agency must process the complaint in the same manner as it would any other discrimination complaint.  However, there are a few differences:

• The Agency must tell you, when you file a complaint, that if a Final Agency Decision (FAD) is not issued within one hundred and twenty (120) days after you file your mixed case complaint, you may appeal the matter to the MSPB at any time thereafter or you can file a civil action in certain federal courts. N.B. - Be wary of leaving the administrative process to file in any federal court - this can prove to be a very dangerous proposition. There will be a post on this matter soon.
• When you file a mixed-case complaint, the Agency must tell you that if you are dissatisfied with the Final Agency Decision (FAD) on the mixed case complaint, you may appeal the matter to the MSPB  - not the EEOC - within 20 days of receipt of the FAD;
• The Agency must issue a FAD within 45 days after the date the investigation is completed.
• When the Agency issues a FAD in a mixed case complaint, the Agency must tell you that you have a right to appeal the matter to the MSPB (not EEOC) within 20 days after you received the FAD - this is different from the typical time to appeal to the MSPB, which is 30 days from the date of the adverse action.

Mixed Case Appeal - A “mixed case appeal” is an appeal filed directly with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, handicap, or age.  The MSPB will process your appeal in the exact same manner that it processes any appeal, and you will carry the burden of proof on your discrimination claims.

The biggest issue with mixed cases involves the dual filing of the matter in the EEOC and the MSPB.  This often occurs when the Agency fails to identify and process your EEO complaint as a mixed case complaint, or when you file a mixed case appeal and the Agency wants to argue that your EEO complaint was filed first.

Another issue that arises with mixed cases is determining which forum is better to initiate you claim in - the EEOC or MSPB.  This is a question that cannot be answered in a blog, as it depends entirely on the particular facts of your case.

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 or a lawyer familiar with Federal employee EEO complaints to discuss the facts and law of your particular case. If you think that you have a mixed case, or if you have questions about how to handle your mixed case complaint or mixed case appeal, contact an EEO and MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

When are you entitled to take Family and Medical Leave Act (FMLA) leave? That answer depends in large part on the particular Agency you work for. Many Agencies have internal rules and procedures implementing FMLA - while they differ slightly from Agency to Agency, they can never be more strict than the requirements that appear below.

Under the Family and Medical Leave Act of 1993 (FMLA), most Federal employees are entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:

• the birth of a son or daughter of the employee and the care of such son or daughter;
• the placement of a son or daughter with the employee for adoption or foster care;
• the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or
• a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions.

Your Agency may define the 12 month period in one of two ways. It can either be a calendar year or, in some situations, Agencies can use a “rolling 12 months”. Your 12 months would start on the first day you are granted any FMLA leave. Some Agencies do this to prevent employees from taking 12 weeks off in October-December of one year, and then January to March in the subsequent year.

Under certain conditions, an employee may use the 12 weeks of FMLA leave intermittently. An employee may elect to substitute annual leave and/or sick leave, consistent with current laws and OPM’s regulations for using annual and sick leave, for any unpaid leave under the FMLA.

When making the request, you need only two things: a request and a medical certification.

Although Agencies will often prefer that you use an SF-71 or its equivalent, the request for FMLA need not be on any particular form. In fact, an employer is supposed to provide you information about your rights and responsibilities under FMLA if the employer becomes aware of any circumstances which might qualify for FMLA. We recently settled a case with an Agency that fired an employee because she didn’t use SF-71 to request the leave. Needless to say, our client appealed the decision to the MSPB and was restored to the Agency rolls (although it took a day of a hearing before the MSPB to convince a very stubborn Agency to settle the appeal). The request should indicate the dates you would like to take off, that you are taking the time off for one of the qualifying events listed above, and should - if possible - give 30 days notice to the employer. The 30 day notice does not apply in all situations, as medical emergencies occur and 30 days notice is not always possible.

In addition to the request, you will need to provide a medical certification. Agencies sometimes put onerous burdens on what employees need to provide in their medical certification. This is improper. In order to ensure that your medical certification is not immediately rejected by your Agency, you should consider using the form found at this link. However, all that a medical certification requires under FMLA is the following items:

1. The date the serious health condition commenced;
2. The probable duration of the serious health condition or, if the condition is chronic, a statement that the condition is chronic, the patient is currently incapacitated, and the frequency of the symptoms;
3. Appropriate medical facts about the condition, the incapacitation and the treatment (this need only be a very general statement);
4. A statement that the employee is incapacitated for duty or is unable to perform at least one essential function of the job (you may need to provide additional statements if the FMLA leave is for treatment/care of someone other than yourself.)

Your doctor may balk at the idea of giving your employer too much information - and rightly so. Your medical matters are private, and the Agency is only required to know as little about them to properly maintain FMLA leave records. If you have any questions about whether your medical certification is sufficient under FMLA, give us a call or send us an email and we’d be happy to take a look at it.

Any leave granted under FMLA is typically Leave Without Pay (LWOP). You can substitute accrued annual or accrued sick leave for the LWOP so that you don’t experience a loss in pay.

FMLA is not meant to be a “gotcha”. Nor is meant to be difficult for employees to apply for and receive. Unfortunately, too many Agencies treat it as such and discipline employees for taking leave under FMLA. Common charges include AWOL, Failure to Properly Request Leave, Failure to Follow Leave Procedures, Failure to Follow Instructions, etc.   If you feel you have been improperly denied FMLA, or feel you have been the victim of a disciplinary or other adverse action because you applied for or took FMLA, it is important to consult with a lawyer familiar with FMLA and your right to appeal 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 think that your Agency improperly denied FMLA or took an adverse action against you because you asked for or were granted FMLA leave, contact the Attig Law Firm, PLLC, to schedule a telephone consultation.

In any EEO case, the Federal employee will be required to prove their claim of discrimination. Understanding what they must prove can often be difficult and confusing. Generally speaking, the Judge will follow the McDonnell-Douglas test in determining whether or not the claimant has met their burden of proof. This test is named for the famous US Supreme Court decision that laid out the test. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)

The three parts of the McDonnell-Douglas test are this:

1. The complainant bears the burden of production to show a ‘prima facie’ case of discrimination;
2. If the complainant shows a ‘prima facie’ case, the burden of production shifts to the Agency to show that they had a legitimate non-discriminatory reason for the action complained of;
3. If the Agency shows a legitimate non-discriminatory reason for its action, the burden of production shifts back to the complainant to show what is called ‘pretext’.

We will discuss each of these elements in upcoming posts. You can click on the link in the above text to go to each post, once it is has been published.

It is important to note, however, that in the law there is a large difference between a “burden of production” and a “burden of persuasion”. The burden of production means only that the party must put forth evidence of the particular element. The burden of persuasion, however, means that the party must persuade the finder-of-fact (in Federal Employee EEO cases, this is the EEOC Administrative Judge) of the correctness of their evidence. In an EEO case, the burden of persuasion always stays with the Complainant (the federal employee). The burden of production - producing evidence to support a claim, shifts if the other party meets its burden. Think of it as a tennis match - if you serve the ball to the Agency, they can either return the ‘ball’ to you by producing evidence of a legitimate non-discriminatory reason, or they can miss the ‘ball’. Generally speaking, if the Agency doesn’t return the ‘ball’ you served, you might be able to prevail without any further proof. (This is not always the case however, and you should consult with a Federal Employee EEO attorney to discuss the facts of your particular case)

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 federal employee EEOC complaints (or MSPB mixed-case appeals) to discuss the facts and law of your particular case. If you have questions about the burden-shifting process, or any claims about your Federal employee EEO complaint, contact an attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

There are several types of appeals which can be made to the MSPB which are “constructive” in nature.   A constructive action occurs when the Agency didn’t actually take an action but can still be held liable as if they took the action.  One example of a constructive action is a constructive suspension - you can read about it by clicking here.

Another type of constructive action is the coerced retirement.   Typically, the MSPB does not have jurisdiction over an employee’s retirement. Why?  Because in most cases, the decision to retire is the choice of the employee not the Agency.  There are situations, however, when the circumstances surrounding a retirement could be described as “coercive”.  In those situations, the MSPB might have jurisdiction over a claim of “involuntary or coerced retirement”.

Here are the common situations when a retirement could be alleged as coerced:

1. The Agency was about to take a personnel action (suspension, removal, etc) which had no legitimate basis and which motivated the employee to retire.
2. The employee was medically or mentally incapacitated from making the decision to retire
3. The employee relied on erroneous advice from the Agency that influenced the decision to retire
4. The totality of the circumstances were such that a reasonable person in the employee’s situation would have felt compelled to resign.

[There may be other scenarios where a retirement is considered to be coerced, so you should talk to an MSPB attorney to discuss the facts of your case.]  The above scenarios are not easy to prove - you generally have to have some pretty good evidence to prevail on your claim.  Moreover, since the Board may not have jurisdiction over your claim until you prove one of the above types of coercion, the issue of whether or not to hold a hearing can often get quite tricky.

A common example is that in most cases, when an Agency is about to fire a senior employee who is retirement eligible, they will often give the employee an opportunity to retire in lieu of the termination.  Some of the Agency attorneys I used to work with called this a “Last Rites” meeting, which always seemed rather crass to me.  Nonetheless, the MSPB has often found that just because an employee had a tough decision - choosing to retire or challenge being fired - does not mean that they were coerced to retire.

I’ve provided an example of a case (through the link below) where the full MSPB has recently reversed the decision made at the regional level; this decision shows a scenario where an Agency may have coerced an employee’s retirement - it is important to note that the Agency has not been found (yet) to have coerced this employee into retirement.  This decision is noteworthy because the full MSPB decision actually discusses the factual circumstances which surrounded the retirement at issue in the case.  You can read the decision in Jones v. Dept. of Treasury, MSPB Docket No. DA-0752-07-0206-I-1 (December 13, 2007) by clicking here.

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 think that your Agency may have coerced you into retiring, contact the Attig Law Firm, PLLC, to schedule a telephone consultation.

Most employees do not know that they do not have to be the actual victim of a “sexual harasser” to be harmed by sexual harassment.   People who are not the target of sexual harassment but who work in environments where sex harassment is occurring can file “third party” and “bystander” harassment suits. These types of claims can be filed by men or women.

There are two types of third-party sexual harassment claims: “quid pro quo” or hostile environment.

“Quid pro quo” is a Latin phrase meaning “something for something” or “this for that”.  In laymen’s terms this simply means “You scratch my back and I’ll scratch yours”.  Quid pro quo sexual harassment is the most commonly known - in exchange for some sexual favor, an employee is given a benefit or boost in the workplace.    How can this affect a third-party - someone other than the employee giving the “sexual favor”?  Simple - when the employee who is not harassed loses a job benefit or opportunity to someone who is less qualified that submitted to the sexual harassment.

Here’s an example that really happened.  The manager of a small and specialized workgroup had a sexual affair with his subordinate and administrative assistant.  The manager gave his “girlfriend” extra bonuses, time-off without using leave, flexible schedules, etc., that weren’t available to other administrative assistants in the office.  Another administrative assistant realized that she was losing out on job opportunities and benefits (she was much more qualified than the paramour for the paramour’s job) because of the affair the boss was having; she realized that unless she slept with the boss, she wasn’t going to get ahead.  This is a classic form of third-party “quid pro quo” sexual harassment.

The second type of third-party sexual harassment is “hostile environment”.   Consider the same scenario above - if one employee who grants sexual favors is given preferential treatment, the motivation and work performance of other employees may be negatively affected.  This is a tough case to prove - not because it doesn’t happen or there isn’t evidence of it, but because you will have to prove the harassment was “excessive, pervasive and opprobrious”.  That means, essentially, that the harrassment was severe enough that it would shock the conscience of the average person, it occurred over a significant period of time, and the negative effects were unmistakeable and long-lasting.

If you think you may be the victim of third-party or bystander sexual harassment - or the victim of any discrimination in the Federal workplace -  contact the Attig Law Firm, PLLC, today to discuss 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 this information is not widely or easily accessible to Federal Employees.  We are providing this information to give you, the federal employee, more information, more knowledge and more power about your MSPB appeal, EEO Complaint or OWCP claim.  We are not providing you with legal advice by giving you access to this information.

The general public is not nearly as sympathetic to disabling mental health conditions as they are to disabling physical conditions.  That’s the prejudice that those who suffer from mental health conditions are up against.

I was reminded of this in a recent hearing.  Our client had a severe mental health condition, and had been out of work for several weeks to seek treatment of this condition - she was heavily medicated and under the frequent care of mental health professionals for the entire time.   When her management thought she was out of work too long, they fired her.  Setting aside the fact that our position was that management violated the Family and Medical Leave Act (FMLA) by denying her FMLA request and firing her, it was clear to us that the motivating factor was the client’s mental health condition.

On the stand, her first and second line supervisor both testified that they knew she had the serious mental health condition. They both testified that they knew she was out of work to get treatment for that condition.  They both testified that they knew she could not perform at least one of the essential functions of her job during the time she was seeking treatment.  But, when asked if the saw her condition as a disability, both said no.

When the first witness (the client’s immediate supervisor) said she didn’t view our client as disabled despite knowledge of the above facts of her mental health condition, I violated the cardinal rule of Cross-Examination, and asked this question: Why?  The answer didn’t really shock me all that much, unfortunately. I’m paraphrasing here but the witness told us she didn’t view our client’s mental health condition as disabling “because I have friends with this mental health condition and they’re not disabled.”

[Insert sound of screeching record here]

Did she have any medical experience?  No.  Did she have any medical training? No. Did she have any medical expertise whatsoever? No.  All she had was her narrow-minded belief that because her friend wasn’t disabled, that our client couldn’t be.

[This same supervisor, by the way, testified at great length about how benevolent she was to the disabled, listing example after example of how she had gone out of her way to help the disabled.  After I got over my disgust with her “I-have-friends-that-are-black-so-I-can’t-be-a-racist” explanation, I realized that most,  if not all, of her examples dealt with physical disabilities].

Mental health conditions are just as serious as physical disabilities. They are just as limiting - and in many ways more limiting - than physical disabilities.  Yet society, as a general rule, shuns the mentally disabled.  Malingerers, weaklings, fakers, wimps…those are, unfortunately, the general public perceptions of those with mental health disorders.  Though we never went deep enough in the cross to explore this, I would be willing to bet that this manager - whether she would admit it or not - viewed our client as ‘weak’ because she had a mental health disorder.

The case settled midway through the hearing - hopefully the Defendants were motivated to settle because they finally realized  that the Americans with Disabilities Act and the Rehabilitation Act were passed into law for the very purpose of protecting individuals with disabilities - even  those with mental health disabilities - from this type of bigotry.

A recent experience in an MSPB Hearing reminded me of one of the most important tenets of advocacy before the MSPB: always read the Judge’s Orders. Let me tell you what happened.

At the opening of the hearing, the Agency called its first witness to testify. This particular witness was on our witness list, but not on the Agency’s witness list. When this is the case, the Agency cannot usually conduct a direct exam of that witness. I objected to the Agency calling one of our witnesses in its case in chief (most times I wouldn’t object to something like this, but in this matter, I was concerned that it might affect our case strategy a tiny bit). The Agency responded by saying that no, in fact the witness was on the Agency’s witness list, and they were entitled to call the witness in their case in chief.

The Judge looked back at her Summary of Pre-Hearing Conference, and sure enough, the witness was identified as an Agency witness.  However, looking back at our Pre-Hearing Submissions, the Agency had never sought to even call the witness.   The Judge made the (benign) mistake of ruling that the Agency had identified the witness for their case in chief. Nobody caught the error - and guess what? The Judge’s ruling in the Summary of Pre-Hearing Conference generally governs everything that happens at the hearing of the case.

Now, in this case, the error turned out to be harmless - very embarrassing, but harmless.  The witness was, in fact, more helpful to our case on direct exam then she ever could have been on cross, for reasons I’m not going to go into on a public forum.

The morale of the story:  always read the Judge’s Orders. If you do not feel that the Judge’s Order is correct, you usually have ten (10) days from the date of the Order to file an objection and/or a Request for Correction. If the Judge’s “mistake” is significant - do not hesitate to object to the Order and seek a correction of the Order.

That can be a pretty big “IF”.  Don’t challenge every mistake for the sake of having a “perfect record”.  If the mistake won’t affect the outcome of the case, it is probably not worth the effort to change it.   Moreover, if the mistake is inconsequential, objecting and/or trying to correct the mistake may only serve to alienate the Judge.

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.

A client of the Attig Law Firm appears to have prevailed in her appeal to the Merit Systems Protection Board today. We received a preliminary ruling yesterday indicating that an Administrative Judge intends to rule in our Client’s favor on the question of whether or not our client was entitled to a particular benefit of federal employment. The actual ruling will likely be issued sometime in early 2008, after a hearing on the discrimination portion of our client’s claims.

Our client is the wife of Donney (last name omitted), who is now deceased. Donney served our country in Vietnam, where he received the Purple Heart with Oak Leaf Cluster, and was exposed to the Agent Orange that ultimately led to his untimely death. After leaving the armed services, Donney continued to serve his country for 30 years as a civilian employee of a Federal Executive Agency (we will not disclose the Agency due to the pending litigation).

In early 2006, Donney entered the hospital in what turned out to be his final illness. Days prior to his death, his wife, acting under a Durable Power of Attorney, retired her husband from civilian service and elected an Alternative Funded Annuity (AFA) pursuant to his direction years earlier. The AFA is a benefit available to retiring federal employees, with less than 12 months to live, that allows the retiring employee to take 50% of their annuity in a lump sum, and the other 50% paid out in monthly installments.

The Office of Personnel Management rejected the retirement application and refused to pay the lump sum benefit - a substantial sum of money. OPM’s rationale for rejecting the retirement and AFA election was that OPM claimed that Congress did not permit them to recognize the Durable Power of Attorney created under color of State law. OPM tried to argue that they had a long history of requiring the employee alone to request retirement and elect an AFA. Interestingly, OPM could not identify a single other case where it denied a benefit applied for through a Durable Power of Attorney.

After a hearing in October before the Merit Systems Protection Board, an Administrative Judge disagreed with OPM and issued a preliminary ruling finding that our client was entitled to be retired under a Durable Power of Attorney and was entitled to have received the AFA.

In addition to the impact of this ruling on our client, this issue has implications for every Federal government employee – if you are among the tens of thousands of Federal employees who has created a Durable Power of Attorney as part of your estate planning, OPM should not be able to ignore your Durable Power of Attorney’s right to act in your stead in the event you become medically or mentally incapacitated.

The case is not over yet. In January 2008, the MSPB is holding a hearing on the claim that OPM’s decision to deny benefits in this case was a violation of the Title II of the Americans with Disabilities Act (guaranteeing that public-service employment benefits shall be administered in a non-discriminatory manner), and/or the Age Discrimination in Employment Act (ADEA).

We’ll keep you posted on any developments. If OPM has rejected your application for a retirement benefit, or any other public service benefit, because it was made while acting under a Durable Power of Attorney, please contact an MSPB attorney, such as the Attig Law Firm, today.