MSPB and Federal Employee Attorney Blog » MSPB Appeals

MSPB Appeal: When will the Board mitigate a federal employee’s removal charge to a disciplinary suspension?

Chris Attig — Fri, 14 Oct 2011 13:52:27 +0000

An interesting decision from the Full Merit Systems Protection Board sheds a little light on how an Administrative Judge should review the Douglas Factors. The case I am going to discuss is Raco v. Social Security Administration, MSPB Docket #PH-0752-10-0543-I-1 (September 29, 2011), found at 2011 MSPB 87.

The Agency removed the federal employee for charges of conduct unbecoming – alleging that the employee falsified credit hour compensation forms by claiming credit hours for time she didn’t work. Most of the 22 discrepancies charged by the Agency were under 5 minutes – the total time at issue seems to be about 1 hour and 34 minutes.

The MSPB Administrative Judge initially found that the charges were not sustained because of the short periods of time involved – this was reversed by the full MSPB which found that the de minimis nature of any alleged misconduct should be considered in the penalty phase. The MSPB Administrative Judge mitigated the removal to thirty (30) days.

The Agency appealed to the full Merit Systems Protection Board (MSPB) and appears to have made voluminous arguments. The plan backfired on the Agency, as it seems they won the battle but lost the war. The full MSPB agreed with the Agency that they had proved the misconduct and that they had proved nexus – and reversed the MSPB Administrative Judge’s decision holding otherwise.

However, the full MSPB concluded that only a 14 day suspension was warranted. Some interesting points from the Board’s thoughts on the Douglas Factors in this case:

1) The Agency relied on an argument that 22 small time reporting discrepancies add up to one serious offense. This is a common Agency tactic. The full MSPB states that this tactic does not work - 19 ”de minimis” time reporting discrepancies did not convince the MSPB that disciplinary action was appropriate. In this case, no intent to do wrong was charged or proven by the Agency. If they did charge intentional falsification (and proved it), the result may well have been different.

2) The Appellant had 20 years of successful federal service, with no prior discipline. This is a big “no-no” for Agencies. Most MSPB Administrative Judges will not sustain an action for removal of a long-time federal employee, with no disciplinary or poor-performance record, for minor charges such as the ones in this case. This is not to say these employees won’t (or shouldn’t) be disciplined; however, Agencies that go straight for the jugular on “de minimis” charges like this are going to have a tough row to hoe at hearing. (Caveat: most MSPB Administrative Judges means exactly that – there are at least two (2) MSPB Administrative Judges that I am aware of who would likely have sustained discipline like this against a federal employee, even with facts like this.)

3) The Appellant produced evidence of a “disparate penalty” – evidence showing that others had committed similar discipline and received substantially lesser discipline.

Keep in mind, however, that this will not be the result in every case involving a long-term employee with a track record of good performance – there are some offenses which will outweigh even a good track record. Everything about this case, though (and it is a decision worth reading) suggests that the MSPB will not sustain an action where the Agency “jumps the gun” (or, in modern parlance, “jumps the shark”).

To be honest, I was a little surprised to read a decision like this – this seems like the type of MSPB appeal that most Federal Agencies would settle. However, in reading this case and some of the Agency attorney’s arguments on appeal, I was reminded of an old adage: the most dangerous snakes are young ones – the attack everything and don’t know how to regulate their venom.

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 an adverse action, an MSPB Appeal, or the MSPB in general, please contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

Federal Disability Retirement: Why does it take so long for OPM to decide to grant or deny Federal Disability Retirement?

Chris Attig — Fri, 14 Oct 2011 13:10:47 +0000

I don’t have a nice tidy answer to that question. The simple answer is that OPM is a bureacracy, and all bureacracies move slow. OPM is no exception when it comes to making decisions about a Federal employee’s FERS or CSRS application for disability retirement. You should mentally prepare yourself to wait some time for a decision when you apply. The question that should have made the title of this post is “How long should I be prepared to wait?”.

That answer depends – OPM typically decides most disability retirement applications within 6-8 months. If you file during the summer or winter holidays, you can expect delays, as employees of any Federal Agency are taking block leave. If you file during the New Year, you can expect delays as OPM is handling an increased volume of non-disability retirements. And if you work for the USPS or DHS, you can expect to wait even longer (these two Agencies seem to have real difficulty getting the application paperwork in to OPM – often taking several weeks or months).

So what can you do when OPM is taking too long to decide? There are a couple of cases which suggest that OPM’s failure to make a decision is tantamount to a denial. See Mayzlik v. Office of Personnel Management, 54 M.S.P.R. 331, 333-34 & n.4 (1992); see also, Nebblett v. OPM, 237 F.3d 1353 (Fed. Cir. 2001); Triplett v. OPM, 100 MSPR 571 (December 7, 2005); McNeese v. OPM, 61 MSPR 70, 73-74 (1994), aff’d, 40 F.3d 1250 (Fed. Cir. 1994)(Table).

These decisions essentially mean that if OPM is taking too long to make a decision in your application, you can imply that they are denying the claim and file an appeal with the Merit Systems Protection Board (MSPB). To make the most effective use of these decisions, and to make sure an MSPB Administrative Judge doesn’t bounce your case for filing too aggressively, the following steps are recommended:

1) Ideally, OPM has denied your claim and has held on to a timely request for reconsideration for 4-5 months.

2) Make monthly status requests (telephonic or written) to OPM about your claim, and document the dates/times and who you spoke with.

3) Send OPM a letter giving them notice that you are going to treat their silence as denial and file in the MSPB – and give them a reasonable (for a bureacracy) time to respond – 60 to 90 days is typically sufficient.

4) If OPM responds with a status that they are still considering your case, or if they respond asking for additional information, this weakens your ability to use this approach. If an MSPB Judge gets the sense that OPM is considering your application for disability retirement, albeit taking a long time to do so, the MSPB Administrative Judge will likely dismiss your case without prejudice for jumping the gun.

It is best to consult with a lawyer familiar withMerit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about federal disability retirement under FERS or CSRS, or OPM’s denial of your applications for federal disability retirementbenefits under FERS or CSRS, contact an MSPB attorney at the Attig Law Firmto schedule a telephone consultation.

Attorney Chris Attig named as 2011 Texas Rising Star.

Chris Attig — Wed, 21 Sep 2011 12:24:53 +0000

Attorney Chris Attig, with the Attig Law Firm, PLLC, has been recognized by Texas Super Lawyers® 2011 as a 2011 Texas Rising Star. Super Lawyers comprise the top five percent of lawyers in each state and are selected each year through a rigorous nomination process that includes peer review by practice area and independent research on candidates. Rising Stars are age 40 or younger who have been practicing for 10 years or less. No more than 2.5% of lawyers in the state are selected to the annual Rising Stars list.

Attorney Chris Attig is accredited to represent U.S. Veterans before the VA Regional Offices of the Department of Veterans Affairs, as well as the Board of Veterans Appeals. He is admitted to the bar of the Court of Appeals for Veterans Claims, and the Federal Circuit Court of Appeals. Mr. Attig has been nominated to serve as the co-chair of the Dallas Bar Association’s Veterans Assistance Sub-committtee, a group which works to coordinate pro-bono legal services for U.S. Veterans that live below the poverty line in the DFW Metroplex.

Mr. Attig is a military veteran himself, having served as a Captain in the United States Army (Active and Reserves) from 1993 – 2004. He served at Ft. Bragg (NC), Ft. Sill (OK), Republic of S.Korea, Ft. Benning (GA), and Ft. Hood (TX).

He received his J.D. from South Texas College of Law in Houston, Texas in 2003, and is licensed to practice law in the State of Maryland (2003) and Texas (2006). Mr. Attig attended the University of Scranton, where he received a B.A. in History in 1993, and was a Distinguished Military Graduate.

The Attig Law Firm represents U.S. Veterans in Texas, Arkansas, Oklahoma, but in their VA Disability Claims all around the United States, Puerto Rico, and even overseas Veterans in their claims for disability compensation and pensions from the Department of Veterans Affairs. The Attig Law Firm also represent Veterans’ survivors in their Dependency and Indemnity Compensation (DIC) and Accrued Benefits (AB) claims.

If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Disability attorney.

Federal Disability Retirement: Attig Law Firm successfully assists VA employee secure disability retirement.

Chris Attig — Tue, 01 Mar 2011 14:12:39 +0000

The Attig Law Firm recently learned that its client was successful in his application for disability retirement under FERS, and that the Office of Personnel Management (OPM) has granted our client’s application for disability retirement.

The federal employee was a FERS employee of the Department of Veterans Affairs. He worked as a senior supervisor handling issues related to Human Resources, and his severe limitations prevented him from performing the duties of that position. Due to the nature of his work and disabilities, further details will not be publicly posted.

Due to special circumstances and the extreme nature of the disabilities, attorney Chris Attig asked OPM to expedite the application for disability retirement. OPM granted the disability retirement application within three (3) months of the date that it assigned a Claims number.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar withMerit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about federal disability retirement under FERS or CSRS, or OPM’s denial of your applications for federal disability retirementbenefits under FERSor CSRS, contact an MSPB attorney at the Attig Law Firm to schedule a telephone consultation.

Federal Disability Retirement: Attig Law Firm successfully assists DHS/CBP employee secure disability retirement.

Chris Attig — Sat, 04 Dec 2010 12:11:16 +0000

The Attig Law Firm recently learned that the Office of Personnel Management (OPM) has granted our client’s application for disability retirement.

The federal employee was a FERS employee of the Department of Homeland Security, Customs and Border Protection. His job was (among other things) to inspect vehicles seeking to enter the U.S. through a Port of Entry. Noxious chemicals from one truck leaked while passing through the Port of Entry, and after they were inhaled by the CBP employee, they caused severe and permanent disabilities – except for one very short attempt to return to work, this particular Federal employee was never able to work again, and has lasting and permanent effects from the injury.

Due to special circumstances and the extreme nature of the disabilities, attorney Chris Attig asked OPM to expedite the application for disability retirement. OPM granted the disability retirement application within four (4) months of the date that it assigned a Claims number.

Federal Disability Retirement: What medical conditions can the MSPB consider if you are denied?

Chris Attig — Wed, 10 Nov 2010 10:28:56 +0000

A recent Initial Decision of the Merit Systems Protection Board (MSPB) reminds us of a key tenet in filing disability retirement applications. When you file your application for disability retirement under FERS/CSRS with the Office of Personnel Management (OPM), make sure that every condition that interferes with your work is listed or identified in the application for disability retirement. If you do not do this, then the MSPB may not consider them. OPM can deny your application, and when you file for an MSPB Appeal of the OPM’s disability retirement denial, you will not be able to rely on any conditions you have not listed on your initial application (or added to the request for reconsideration) as playing a role in your need for disability retirement.

I often get calls from FERS/CSRS Disability Retirement applicants who have been denied disability retirement by OPM. They tell me all the medical conditions that are impacting them, and when I look at their application and denial letter from OPM, I often do not see all of the federal employee’s medical conditions listed. In addition to the individual medical conditions, a FERS/CSRS employee applying for disability retirement can and probably should try to argue how the collective operation of all of their medical conditions – in addition to each one individually – precludes them from rendering useful and efficient government service.

MSPB: Can an Agency remove me for medical inability to do my job?

Chris Attig — Thu, 09 Sep 2010 10:46:39 +0000

Generally, the answer is yes. An agency may remove a FERS or CSRS civil service employee if he or she is unable, because of a medical condition, to perform the duties of the position. But, to sustain the removal at the MSPB, the Agency will need to make a pretty convincing proof.

To sustain its charge, the Agency will need to prove: a) that the federal employee has a medical condition; b) that there is a nexus between the federal employee’s medical condition and either (1) observed deficiencies in his work performance or conduct or (2) the a recurrence of the disqualifying condition would pose a reasonable probability of substantial harm.

A charge of medical inability to perform is different from a charge of unsatisfactory performance – the former requires medical evidence showing that the employee is incapacitated for particular job duties due to a medical condition. Although non-medical evidence regarding performance deficiencies might corroborate medical evidence of incapacity, the non-medical evidence alone is insufficient to establish the charge of inability to perform job duties.

If the evidence supports a finding that the Federal Employee has recovered, by the time of the hearing – regardless of whether or not the employee was unable to perform his duties at the time the agency took the action, the Board will reverse the removal.

And keep in mind – a removal for medical inability to perform the essential functions of a position is evidence that the federal employee is presumed entitled to disability retirement through OPM under the Bruner presumption.

MSPB: Indefinite Suspensions and MSPB Appeal rights

Chris Attig — Mon, 06 Sep 2010 12:11:34 +0000

Indefinite suspensions seem to be getting increasingly popular with Federal Agencies. Generally speaking, an indefinite suspension can’t go on forever. Once an Agency suspension exceeds 14 days, the Federal employee should get an MSPB Appeal right, and the Agency has to prove that the suspension is justifiable, typically under the procedures outlined in Chapter 75 of Title 5 of the United States Code.

However, the MSPB has recognized, over the years, three separate situations where a Federal Agency might be able to use an “indefinite suspension”:

1. When the agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed—pending the outcome of the criminal proceeding or any subsequent agency action following the conclusion of the criminal process;

2. When the agency has legitimate concerns that an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate—pending a determination that the employee is fit for duty;

3. When an employee’s access to classified information has been suspended and the employee must have such access to perform his job—pending a final determination on the employee’s access to classified information.

Each of these types of “indefinite suspensions” do have evidentiary rules and procedural requirements, so it is best to contact an MSPB attorney if your Agency has suspended you indefinitely in one of the above scenarios.

Federal Disability Retirement: Can I use medical evidence after my separation to support my disability retirement application?

Chris Attig — Wed, 01 Sep 2010 12:20:40 +0000

Can you use medical evidence, developed after your separation from civil service, to establish entitlement to disability retirement? A Federal Circuit decision says yes. In Reilly v. Office of Personnel Management, 571 F.3d 1372 (Fed. Cir 2009), the Federal Circuit Court held that post-separation medical evidence can be probative of whether the appellant became disabled while serving in a FERS or CSRS position “[w]here proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period.”

Prior to this decision, the MSPB held that medical opinions rendered after a federal employee’s separation from a FERS or CSRS position are admissible evidence in his or her disability retirement appeal only if they are based on pre-separation tests, observations, interviews, and medical examinations, and address the employee’s pre-separation condition. The Federal Circuit over-ruled the MSPB holding; it said that the MSPB’s prior holding contradicts the general rule that OPM and the MSPB must consider all competent medical evidence for a FERS or CSRS disability retirement applicant.

It is best to consult with a lawyer familiar withMerit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about federal disability retirement under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney at the Attig Law Firm to schedule a telephone consultation.

MSPB: Federal Employee’s removal mitigated to 30-day suspension

Chris Attig — Fri, 20 Aug 2010 12:52:18 +0000

The Full MSPB issued a decision reversing the removal of an employee of the Department of Veteran’s Affairs. Suggs v. VA, 2010 MSPB 99 (June 1, 2010).

Initially, the VA removed the employee for charges of disrespectful conduct, among other things. The employee had previously received a 3-day suspension for failing to follow instructions and inappropriate conduct. The Suggs decision is a good primer for explaining what the MSPB can – and should – consider in deciding “disrespectful conduct” cases. Here are a couple of those factors:

1) For cases where there is a single charge of disrespectful conduct, removal might be upheld when there are multiple specifications, and the conduct involves abusive or obscene language, or physical action.

2) Where there are numerous mitigating factors, including evidence that the supervisor contributed to the conflict by raising his/her voice, the employee had a medical condition impacting his or her actions, longevity of civil service, and recent positive evaluations, mitigation is a very possible outcome.

It is quite possible that Suggs will be a very important case for Federal employees. Over the past 8-10 years, Agencies have successfully established that disrespectful conduct means whatever the supervisor wants it to mean when he or she testifies before the MSPB. Suggs is a big first step in restoring some sort of objectivity and balance to the Federal Workplace, so that employees can speak their mind without fear of a supervisor over-reacting (or worse, using a discussion with an employee to get rid of a disabled worker, a Whistle-blower, or any other employees in protected groups).

You should consider contacting an attorney with experience in handling MSPB appeals to the MSPB or a lawyer with experience representing Federal employees in MSPB and EEOC complaints of violations of the ADA and Rehab Acts and/or the Whistleblower Protection Act (WPA).

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 believe that your Agency has improperly disciplined or removed you, contact an attorney familiar with MSPB appeals and federal employee EEOCcomplaints.