Attig Law Firm P.L.L.C

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.

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.

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.

An Agency may take action based on performance in two ways - as a performance issue under 5 CFR Part 432 or a conduct issue under 5 C.F.R. Part 752.  Before taking a performance action under 5 CFR Part 432, the Agency must allow the Federal employee a reasonable opportunity to improve his or her performance.  This period, commonly known as a “PIP”, is also known as an improvement period, opportunity period, or other similar names.

There are, generally, four stages of a PIP.  They are: 1) Notice of unsatisfactory performance; 2) Notice of Opportunity Period issued; 3) the formal PIP; and 4) the outcome of the PIP.

First, the Agency must inform a federal employee that there has been an observable and observed decline in performance to an unsatisfactory level.   This decline can be in one or more Critical Job Elements (CJE or CE).

Next, the Agency must give the Federal employee notice of the opportunity period. The notice must inform the Fed employee of the specific CJE or CE he/she is failing, specifically what must be done to improve the performance to a satisfactory level, how that improvement will be measured and observed, what assistance management will provide, and the consequences if the Federal employee does not improve his/her performance during a PIP.

The third step is that PIP itself.   Though the length and scope of the PIP varies from job to job, and depends in large part on how many CJE’s or CE’s the Federal employee allegedly failed. The rule of thumb is that the PIP must afford the employee a “reasonable opportunity to improve”.  This is an objective standard, and what is reasonable for one employee or job may not be reasonable for another employee or job.

Finally, if the Federal Employee successfully navigates the PIP, they will be issued some sort of clearance letter or written indication at the conclusion of the PIP.  If the Fed employee does not bring his/her performance to a satisfactory level, then the Agency may  remove or demote the employee.

Going through a PIP can be a stressful process. The Attig Law Firm, PLLC, offers Federal employees a one-on-one consultation to provide tips and pointers on how to successfully navigate a PIP.

Contact the Attig Law Firm if you would like a PIP review. If your Agency is taking action against you because of an alleged decline in your performance, be sure to contact an MSPB lawyer today.