Attig Law Firm P.L.L.C

Over the coming weeks, we will be posting a series of articles about Whistle-blower reprisal appeals before the MSPB. Whistle-blower appeals are some of the more difficult cases to bring before an Administrative Judge of the MSPB, for many reasons. Click here to return to the original post: Introduction to Whistle-blower Reprisal Thread.

This post, the second in the thread, will generally discuss the Whistle-blower Protection Act: what it is, and what it is supposed to do.

The next post, “Are you a whistle-blower” will discuss what sort of disclosures a federal employee must make before they are considered a “whistle-blower”.

For our purposes, a whistleblower is an employee or former employee of a government agency who reports misconduct to people or entities that have the power and presumed willingness to take corrective action.  Over the last 100 years, as the Federal government has grown larger, and as the Executive Branch engages in more and more mischief, Congress has passed a variety of laws meant to protect those that disclose the Executive Branch’s mischief.   One of those laws is the Whistleblower Protection Act.

A federal agency violates the Whistleblower Protection Act, 5 U.S.C. § 1221(e) if it takes or fails to take (or threatens to take or fail to take) a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

Many Federal employees confuse the WPA with the NO-FEAR Act, which is a bit of a misnomer.  The primary purpose of the NO-FEAR Act is to require federal agencies to pay awards for discrimination and retaliation out of their own budgets., rather than out of the government’s general Treasury Fund.

The NO-FEAR Act, passed into law by Bush the Younger in 2002, has no provisions to protect employees who make protected disclosures of government waste, fraud, or abuse.  Instead, Section 202 of the NO-FEAR Act only requires  that Executive Branch Agencies notify all federal employees and applicants for employment about their rights under federal law, specifically, their rights and remedies under various anti-discrimination and anti-retaliation laws.

Most Federal employees don’t know that the NO-FEAR Act does nothing to provide them with any greater protection.  I have seen many federal employees try to allege that their Agency violated “NO-FEAR” by discriminating against them or retaliating.  Very generally speaking, the only way that an Agency can violate NO-FEAR is by not reimbursing the General Treasury Fund as the Act requires or by failing to notify employees of their rights and remedies as stated above (I cannot think of a fact scenario, at this point in time, where an employee could successfully argue violation of the notice provisions of the NO-FEAR Act - even if they could, there is no independent remedy under NO-FEAR).  For that reason, I often call the NO-FEAR Act the “NO-TEETH” Act.

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.

Chris Attig, a lawyer with the Attig Law Firm, PLLC, has handled whistle-blower reprisal appeals before the Merit Systems Protection Board (MSPB). 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, particularly in a whistle-blower reprisal appeal. If you think you are a whistle-blower, and you think that your Agency may have retaliated against you because of that, contact 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.

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.

An increasing number of cases before the Board seem to involve the issue of constructive suspension. What is a constructive suspension?

A constructive suspension occurs when, through no fault of her own, an employee is absent from work for more than fourteen (14) days, with a loss in pay. A constructive suspension can only occur when the Agency - not the employee- initiated the absence. If the employee voluntarily initiates an absence, then there is no constructive suspension.

At hearing before the MSPB, the employee-appellant has the burden of proof in a constructive suspension case. That burden is to show, by a preponderance of the evidence, that the absence was involuntary.

A common example of a constructive suspension occurs when a federal employee is found to be fit to return to work by OWCP. When an employee requests work within his medical restrictions, the Agency is bound by policy, regulation, or contractual provision to offer available work to the employee. If the Agency fails to make such an offer, the employee’s continued absence for over 14 days constitutes an appealable constructive suspension.

Once the absent employee makes a non-frivolous allegation that he was able to work within certain restrictions, that he communicated his willingness to work, and that he agency prevented him from returning to work, the burden of production shifts to the Agency. (A burden of production differs from a burden of proof. Under a burden of production, the Agency need only show evidence of a certain point, not prove it to a legal certainty). The Agency’s burden is to produce evidence to show that there was no work available within the employee’s restrictions, or that it offered such work to the employee and he declined it.

If the agency meets its burden of production, then the appellant must present sufficient rebuttal evidence to meet his overall burden of proof.

Another example of a constructive suspension occurs when an employee is suspended, without pay, for more than 14 days while the Agency conducts an investigation of misconduct. Most Agencies have figured that the suspension during an investigation creates an appeal right, and now suspend employees with pay while they are being investigated.

If you are a federal employee, and believe that your employing Agency has constructively suspended you, you should contact a law firm such as the Attig Law Firm, PLLC, that has experience representing Federal employees before the Merit Systems Protection Board (MSPB)

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.

Another client of our Firm received a favorable outcome before the Merit Systems Protection Board (MSPB).

This individual was a 3-decade veteran of the United States Armed Forces and a Federal Agency that we will not disclose due to the nature of the case. Earlier this year, the Office of Personnel Management (OPM) reduced our client’s retirement annuity when he reached the age of 62. When he separated from civil service, he did not pay a deposit for his post-1956 military service; as such when he reached age 62, OPM reduced his retirement annuity. Federal employees with prior military service are (or should be) acutely familiar with this event, and know it as the “Catch-62” provision.

Typically, the MSPB has found that so long as an employee is informed of the right to make the deposit and the consequences of not making the deposit, then there is no remedy when the Catch 62 provisions are triggered. In certain cases, however, the Board may direct OPM to waive the time limitations and allow the employee to make the deposit and receive the benefit. Those cases are reserved for situations where it is clear that the employee was never advised of the right to make the deposit or is affirmatively misled by his employing Agency or OPM about the consequences of not making the deposit.

In this case, both scenarios occurred. Our client was not only retired in a very bizarre way - the standard retirement application was not provided to him, and a personnel officer in his Agency advised him that he wouldn’t be entitled to the increased annuity anyway.

The Firm’s aggressive use of the Freedom of Information Act (FOIA) and other pre-discovery tools were instrumental in producing enough documentation to prove these facts at a hearing. Shortly after the Pre-Hearing Conference in the case, OPM agreed to rescind its decision reducing the annuity and has allowed our client to make his military deposit. As such, the MSPB dismissed the case in favor of our client.

The favorable outcome will increase our client’s retirement annuity at least $10,000 per year for the rest of his life. Read more about Catch-62 here.

If OPM reduces your annuity at age 62 under the Catch 62 provisions, do not hesitate to contact an MSPB attorney as soon as you receive word from OPM. Despite the standardized retirement forms used since the early 1990’s, there are still too many Federal employees who are misled or misinformed about their right to this benefit of federal employment.

Another client of our Firm received a favorable outcome before the Merit Systems Protection Board (MSPB).

This individual was a veteran of the United States Armed Forces and a Federal Agency that we will not disclose due to the nature of the case. Earlier this year, the Office of Personnel Management (OPM) reduced our client’s retirement annuity when he reached the age of 62. When he separated from civil service, he did not pay a deposit for his post-1956 military service; as such when he reached age 62, OPM reduced his retirement annuity. Federal employees with prior military service are (or should be) acutely familiar with this event, and know it as the “Catch-62” provision.

Typically, the MSPB has found that so long as an employee is informed of the right to make the deposit and the consequences of not making the deposit, then there is no remedy when the Catch 62 provisions are triggered. In certain cases, however, the Board may direct OPM to waive the time limitations and allow the employee to make the deposit and receive the benefit. Those cases are reserved for situations where it is clear that the employee was never advised of the right to make the deposit or is affirmatively misled by his employing Agency or OPM about the consequences of not making the deposit.

In this case, our client told us that, when he retired, he was told by his retirement benefits counselor that the Catch 62 provisions were not applicable to him. He also contended that he was never counseled about the Catch 62 provisions. In discovery, we were able to prove these facts: his employing Agency had checked “Not Applicable” in the portions of the retirement counseling pertaining to Catch-62. Furthermore, there was no evidence that the Client was ever informed how much to pay and when. Finally, there was evidence that our Client was affirmatively misled that these provisions would not apply to them because he “was not eligible for social security anyway”.

Shortly before the Pre-Hearing Conference in this case, OPM agreed to rescind its decision reducing the annuity and has allowed our client to make his military deposit. As such, the MSPB dismissed the case in favor of our client.

The favorable outcome will increase our client’s retirement annuity approximately $5,000 per year for the rest of his life. Read more about Catch-62 here.

If OPM reduces your annuity at age 62 under the Catch 62 provisions, do not hesitate to contact an MSPB attorney as soon as you receive word from OPM. Despite the standardized retirement forms used since the early 1990’s, there are still too many Federal employees who are misled or misinformed about their right to this benefit of federal employment.

The provisions are confusing, and benefits counselors often give poor and misleading information to retirees. If you would like to discuss how Catch-62 affects your retirement annuity, contact the Attig Law Firm today.