Attig Law Firm P.L.L.C

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.

After significant consideration and evaluation, the Attig Law Firm, PLLC, will begin representing US Veterans in their disability benefits claims before the VA and the Court of Appeals for Veterans Claims.

After researching the ins and outs of the VA disability benefits systems, it became clear that a represented Veteran can have an entirely different experience before the VA and the Court of Appeals for Veterans Claims than a non-represented Veteran typically has.

Given the high volume of disabled veterans returning from the current war, and the high volume of veterans from prior wars who are neglected or ignored or simply lost in the VA’s system, the need for legal representation of Veterans is greater than ever. There are some limitations on when an attorney can represent a Veteran in claims such as this, but in June 2007, the rules were relaxed slightly to enable more Veterans more access to legal counsel. (As an aside - can you believe this - the Veterans who put their life on the line for their country are not allowed to hire attorneys for a portion of the claim process? It’s a ridiculous rule, isn’t it?)

The Firm will charge no consultation fee to review a Veterans’ claim for benefits. If we offer to represent a Veteran, we will work entirely on a contingency basis in the Veterans’ case.

Over the coming weeks and months, the Firm’s website will be redesigned to incorporate the addition of the new practice area. In the meantime, if you are a veteran in need of assistance with your disability benefits claim, please contact an attorney with the Attig Law Firm, today.

Due to our increased caseload, the Attig Law Firm has recently added an additional member to our team - Brittany Teal.

Brittany Teal is a recent graduate of the SMU Dedman School of Law. She received her undergraduate degree from the University of Texas. At UT, she was Co-Founder of the African American Pre-law Association and a featured writer for The Daily Texan, the largest student-run newspaper in the country. In law school at SMU, Brittany served as a Staff Editor for the Computer Law Review and Technology Journal, a Student Attorney/Chief Counsel for the W.W. Caruth, Jr. Child Advocacy Clinic and as a board member of the Dallas Association of Young Lawyers.

As a law student, Brittany served as a law clerk for XTO Energy and Legal Aid of Northwest Texas. She was a Regional Finalist in the National Trial Competition and a Semi-Finalist in the Frederick Douglass Moot Court Competition. Brittany also served as a Chief Justice for the Jackson Walker Moot Court Competition at SMU and held positions in her local and regional Black Law Student Association chapters.

Upon graduation from law school, Brittany was honored by her peers as a finalist for the John E. Kennedy Memorial Scholarship Recipient for Service to the Law School Community.

Join us in welcoming Brittany to our team here at Attig Law Firm. Until sitting for the Texas Bar Exam this February, Brittany will be learning the ropes of Federal employment law and in some cases she will sit as “second-chair” in EEO and MSPB hearings. We look forward to seeing her pass the bar and represent our clients at hearing and in trial.

Have you been told that the Agency isn’t allowed to recognize your private attorney in an EEOC or MSPB case because the “Union said they can’t”?

With great frequency, many of our clients are being denied their rights to an attorney by an Agency management or human resources individual. Ironically, these management representatives claim that they cannot recognize a Federal employee’s private attorney because the “union” is the “exclusive representative of the bargaining unit”, and therefore no private attorney can represent you. Every time we’re fed that line by Agency managers, labor relations “specialists” or EEO Counselors, we contact the Union and find that this is simply not true.

The problem here is that these labor relations “specialists” misinterpret the statute and the law. As a result, they effectively deny you your constitutional right of due process.

First, Federal Service Labor-Management Relations Statute states at 5 U.S.C. 7114(A)(5): “The rights of an exclusive representative (the Union) …shall not be construed to preclude an employee from being represented by an attorney or other representative, other than the exclusive representative, of the employee’s own choosing in any grievance or appeal action.”

The regulations governing the EEOC process state, at 29 C.F.R. §1614.605(a): “At any stage in the processing of a complaint, including the counseling stage…the complainant shall have the right to be accompanied, represented, and advised by a representative of complainant’s choice”

Lastly, the regulations governing MSPB appeal procedures state that an appellant may choose any representative so long as that person is willing and available to serve. 5 C.F.R. 1201.31

Where Agency managers and labor relations “specialists” run afoul of the law is that they interpret the term “exclusive representative of the bargaining unit” too broadly. They focus on the terms “exclusive representative” and conclude that if a member of the bargaining unit wants a representative - for any issue arising out of the workplace - it has to be the Union.

Simply not true.

They should focus a little more on the “bargaining unit” portion of that phrase - that’s the important one. The union is the exclusive representative of the bargaining unit for matters that arise out of the collective bargaining agreement. Your right to file an EEO complaint or an MSPB appeal does not arise out of the collective bargaining agreement - it is a wholly separate statutory right and your Agency cannot limit your right to choose any more than they can limit your right to file in the first place.

The answer will be completely different if the matter is one that does arise out of the collective bargaining agreement. The only area where an Agency can come close to arguing that you may not hire an attorney of your choice is when you are attempting to bring a grievance under the collective bargaining agreement (the Union contract).

Nobody - no Agency, no Union, nobody - can take away your right to a representative of your choosing before the EEOC or the MSPB. The great irony here is that those LR specialists and managers who complain about Unions until the sun sets are the first to hide behind the Union when a private attorney comes knocking.

I know of one Federal Agency where the contract gave Unions a right to be present during settlement negotiations of an EEO case, even when the employee was represented by private counsel. The Agency attorneys loved it; it gave them a way out of settlement discussions, and a “legitimate” reason to tell the Judge that they couldn’t even talk settlement without the Union’s okay. (What they neglected to tell the Judge that the employee had every right to exclude the Union.)

If someone tells you that you are not entitled to the representative of your choice in an EEOC or MSPB appeal, contact the Attig Law Firm, PLLC, right away. We represent Federal employees in their EEOC, MSPB and OWCP claims against the Federal government. We’d be happy to set your manager or labor relations “specialists” straight.

Footnote: The demon in this all too frequent story is the Agency, not the Union. In nearly every case where an employee has a close affinity with their Union, and where the employee wants to involve their Union in the appeal or complaint process, we make every attempt to involve the Union in the employee’s claim.

House subcommittee on Health, Education, Labor and Pension held a hearing on the Employment Non-Discrimination Act ( ENDA ) on Sept. 5, 2007.  ENDA would, among other things, prohibit discrimination based on sexual orientation. 

Currently, Federal employees who are also members of the GLBT community may not challenge sexual orientation discrimination unless it is connected to an action that is appealable to the Merit Systems Protection Board (MSPB).  This is more than private sector employees who are members of the GLBT community - who currently have no legal protection.

Click this link to read the long history of a group that has worked to secure basic protections, including an end to discrimination against the GLBT community.

The Attig Law Firm, PLLC, represents federal employees in their claims of discrimination against executive agencies of the federal government.  If you feel you have been the victim of a discriminatory act or practice in the federal government, contact an EEOC attorney today.

Once again, we read another story about a Federal employee who raised concerns about her Agency’s practices, and shortly thereafter finds herself without a job.  At some point, but probably not before there is a new presidential administration that respects civil service, we hope that Congress will take action and improve protections against Federal whistleblowers.   Click here to read the story.
This particular employee - a 29-year veteran of the Forest Service - was transferred just days after she raised objections about cuts in fire suppression spending in the San Bernardino National Forest.  San Bernardino National Forest has been called the “most threatened community in the nation” because of its population density and the fire danger.I confess I don’t know the details of this employee’s removal and whistleblower case.  However, the removal charge has all the hallmarks of trumped up charges meant to retaliate against an employee who has tried to do the right thing for the Federal government and the United States taxpayer.    Some of these hallmarks, from my experience, include:

• Long-time federal employee with recent evidence of reporting waste, fraud, abuse or mismanagement in a government agency

• Significant adverse action against employee without, it appears, any prior disciplinary issues

• Charges include multiple specifications of a small number of, comparatively speaking, minor disciplinary charges (violation of Agency’s limited internet use policy, for example) that would typically yield other employees only a letter of reprimand or small suspension

Friend of the Firm and Attorney William Brawner is representing this particular civil servant in her removal appeal to the  We wish them luck and look forward to a favorable outcome.

The Attig Law Firm, PLLC, represents Federal employees in their appeals to the Merit Systems Protection Board (MSPB) and their complaints to the Equal Employment Opportunity Commission (EEOC).

If you feel that you have wrongfully removed from your Agency or suffered an adverse action because of discrimination or protected whistleblowing activity, contact a federal employee lawyer at the Attig Law Firm today.

The U.S. House of Representatives is scheduled to vote soon on the Employment Non-discrimination Act (ENDA) . The current version of the bill, introduced in April 2007, will include gender and sexual orientation as distinct basis for protected group status.  We’ll keep you posted on the vote on our Blog as we learn more about it.

Currently, discrimination based on sexual orientation may be a prohibited personnel practice in the federal government employment context. The MSPB has found that it lacks jurisdiction, however, unless the discrimination is connected to an otherwise appealable action connected with the treatment alleged to be based on sexual orientation.  This new bill, if passed and signed by the President, would possibly provide Federal employees with another venue to pursue claims of discrimination based on sexual orientation.

In the meantime, read this great survey by the Harris group about American beleifs and perceptions of  the GLBT community in the workplace, etc.  Click here to view the survey.

In EEO Complaints stemming from an employee’s lowered appraisal, government attorneys often try to argue that when an appraisal is lowered, but still satisfactory, there is no adverse action.  The case of Maurya Green may have put a dent in that argument. Green v. National Science Foundation, EEOC No. 01A33221 (February 16, 2006).

In early 2002, Ms. Green received  an annual appraisal. This year, a temporary supervisor lowered the overall rating recommended by her regular supervisor from “Very Good-High” to “Fully Satisfactory”. The Agency, in its FAD (Final Agency Decision) found that the lowering of the appraisal was not discriminatory.

Nearly four years later, on appeal to the Office of Federal Operations (OFO), the EEOC found that the Agency’s action was discriminatory.  They found that even though the Agency articulated a legitimate non-discriminatory reason for lowering the federal employee’s appraisal, that reason was a pretext for discrimination.

The OFO found that when management had a meeting about “how to deal with the staffing shortage caused by [Complainant’s] part-time status”, the meeting sounded suspiciously like a meeting to “deal with” the federal employee’s disability.   They cited notes from this meeting - a rare “smoking gun” - that suggested that the managers had a meeting to discuss issues related to the complainant’s disability, including: “stoking the pot to get [complainant] to take [voluntary] disability.”

There does not appear to be any mention that the lowering of the appraisal from a very high rating to a lower, but still successful, rating is not an adverse action.

Two noteworthy points about this case.  First, there was no ruling by an Administrative Judge - the federal employee appealed to OFO directly from the Final Agency Decision (FAD).  Second, it took this federal employee nearly 5 years to get only a small part of the vindication she sought.

We got another call today from a federal retiree on an issue that is appearing more and more frequently.   The issue is the effect on a retiree’s retirement annuity if they don’t “buy-in” their post-1956 military service credits into their CSRS/FERS retirement.

Here’s how it works.   A federal employee who retires after September 7, 1982 is entitled to receive credit, under both the CSRS and Social Security, for any active duty military service performed after 1956.  The employee only gets this credit if he deposits an amount equal to 7 percent of his total post-1956 military pay with OPM.  If the employee retires after September 30, 1993, the employee has to make this deposit before he retires. 

If the employee does not make the deposit before he retires, when he becomes eligible for Social Security benefits, OPM is required to recompute the retiree’s annuity payments, to exclude the credit for his post-1956 military service.  This reduction can be quite significant. 

Depending on how many years of post-1956 military service the employee has, the reduction can range from hundreds to thousands of dollars per month.  And the reduction hits at the worst possible time - after the retiree has become used to the higher stream of income and at the age of 62, when it is hardest to rebuild the loss of income into your pre-planned retirement nest-egg.

There is a limited opportunity under which OPM can waive the “deposit by retirement” deadline - but it is a very limited opportunity.  Essentially, you have to show that you were mislead or confused by OPM as to the amount/effect of the reduction, and that that confusion or deception kept you from making the deposit.  Out of the dozens of initial decisions of the MSPB that I’ve recently reviewed on this question, only a very small number of retirees can thread that needle.

Assuming you have the facts to make that limited proof, you’re still likely to have to file an appeal in the MSPB to get the waiver - and that could mean you’ll need to hire a lawyer (preferably one who has practiced before the MSPB) to ensure you can get the decision you need.   Even when a retiree prevailed, they didn’t always recover their attorney fees.

Do yourself a favor - make sure you buy in your military service credits before you retire.  And  if you decide not to, make sure you understand exactly what the consequences will be.

If you want to talk with an MSPB attorney about any of the information you’ve read in this post, don’t hesitate to contact the Attig Law Firm, PLLC, today.

Click here to read OPM’s convoluted and un-helpful rules on the post-1956 military service credits. 

Click here to read an explanation that actually makes sense.

In an August 22, 2007, decision, the Office of Federal Operations (OFO) of the Equal Employment Opportunity Commission (EEOC) found the USPS liable for failure to reasonably accommodate.  Bratsch v. U.S.P.S., EEOC Appeal No. 0120071942 (August 22, 2007).  The OFO ordered the Agency to pay $8,000.00 in non-compensatory pecuniary damages.   (The OFO adjudicates appeals of Federal Agency decisions on discrimination complaints, and also ensures Agency compliance with decisions based on those appeals.)  

The decision came after the Complainant’s appeal of the Agency’s final decision awarding him only $2,500.oo in non-pecuniary compensatory damages.  (Complainant did not claim any actual pecuniary damages).  According to the Agency’s decision, the Complainant did not show that there was any ongoing discrimination and that he was only entitled to $2,500.00 in non-pecuniary damages.

In the underlying case, the Agency was found to have discriminated against the Complainant when it failed to reasonably accommodate complainant’s hearing impairment by not providing him with a sign language interpreter or other means of participation in the Agency’s employee meetings.  According to the commission, there was evidence of at least five incidents over a one year period where the agency failed to accommodate complainant’s hearing impairment.

The EEOC found that $8,000.00 was an appropriate sum for damages based on three major factors.  First, case precedent illustrated that damages in similar cases ranged from $7,500.00 to $10,000.00.  Second, the EEOC said that the purpose of non-compensatory pecuniary damages is to remedy the harm to the Complainant and not punish the Agency.  Third, there was evidence in the record that the Agency’s conduct caused the Complainant feelings of frustration; the evidence  also showed that the Agency’s deliberate conduct showed total disregard for the disabled employee.

What is interesting about the decision is that it illustrates an ongoing problem in Federal government management circles.  Managers fail to realize how little is often required to accommodate disabled employees - in this case all that was required was a sign-language interpreter to be made available at sporadic meetings.  Instead of choosing to allow a hearing impaired  employee this small accommodation, the Agency expended substantial time and money - not only to lose its case, but also an additional $8,000.00.

If you have questions about your complaint of discrimination against a Federal Agency, or want to speak with an attorney that practices before the EEOC, contact the Attig Law Firm today.