Mr. Bruton was a VA employee. As with most Federal employees, his problems started when he was injured on the job in 2002. In 2005, Mr. Bruton’s doctor restricted him to 3 hours a day of work. The Office of Workers Compensation directed that Mr. Bruton get a second opinion and, because the second opinion was different from that of his own doctor, Mr. Bruton was required to get a referee opinion. The referee opinion determined that Mr. Bruton could work an 8 hour day.

Mr. Bruton was directed to return to work, and he did, but only worked a 3 hour day, consistent with his doctor’s restrictions. After about 3 months, the VA removed Mr. Bruton.

The Administrative Judge in Mr. Bruton’s MSPB appeal sustained the Agency’s removal action in November/December 2006. In February 2008, Mr. Bruton filed a Petition for Review before the Board, the Board granted the appeal, and reversed the removal action.

There is one interesting point about this appeal. Typically, a Federal employee only has 30 days from the date of an Initial MSPB Decision to file their appeal to the full Board in Washington, D.C. Typically, the Full Board is not very lenient when appellants miss their filing deadlines. The Attig Law Firm, PLLC, routinely informs potential new clients of the difficulty in getting a late PFR to be heard by the Full Board, and strongly encourages that appellants get their appeal or petition for review postmarked and sent certified mail as soon as possible within their 30 days deadline.

In this case, the employee filed his appeal nearly 14 months later. The Board granted the appeal based on the fact that Mr. Bruton had new evidence that was not available at the time that the decision was issued.

What was the new evidence? A decision of the Employees’ Compensation Appeals Board (ECAB), that determined in January/February 2008, that the earlier decision of the OWCP was in error, and reinstating Mr. Bruton’s benefits effective some time in 2006.

Here’s the standard for filing an untimely appeal when there is new evidence that may inform the outcome of the case: “the discovery of new evidence may establish good cause for the untimely filing of a petition for review if the evidence was not readily available before the close of the record below, and if it is of sufficient weight to warrant an outcome different from that of the initial decision.” Satterfield v. U.S. Postal Service, 80 M.S.P.R. 132, ¶ 5 (1998) (quoting Boyd-Casey v. Department of Veterans Affairs, 62 M.S.P.R. 530, 532 (1994)).

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 think you may have new evidence that would allow the full MSPB to reconsider a past decision of the MSPB, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

Chris Attig, a lawyer that represents retirees before the MSPB on Catch-62 appeals, says “The reduction is often much more than the retiree expects.   In some cases, the retiree’s income is reduced by $1000-$2000 per month.  This reduction hits retirees when they are least able to replace the income - particularly in a tight employment market or a recession.”

The biggest problem is that, even today, years after the passage of the Catch-62 provisions, employees are being ill-advised of the need for making this deposit or the failure of making the deposit.  MSPB lawyers at the Attig Law Firm, PLLC, have seen situations where HR and retirement personnel  have told employees that the age 62 reduction will be less than a hundred dollars a month - the reduction is more likely in the thousands per month.  They have told retirees that they will make up the difference in Social Security payments - a silly point given that the employee is losing thousands of dollars per month that they need not lose.  They have told retirees that they can make the deposit after they retire - this is flat out incorrect.  They have told retirees that nobody at the Agency knows how to calculate the deposit - without telling the employee how to contact individuals that can calculate the deposit.  In one fairly egregious case, HR and retirement personnel gave our client retirement forms dating back to 1982 (he was retiring in the early 1990’s), thus giving the employee no notice of the deposit rules, the need for the deposit and the consequences of the deposit.

Since the Federal Circuit Court ruled on the matter in 2006, the rule has been that if an Executive Agency commits “administrative error” and as a result of that “administrative error” the employee does not make the deposit,  the MSPB will order OPM to accept a late deposit and reverse the reduction in the annuity. McCrary v. Office of Personnel Management, 459 F.3d 1344, 1349 (Fed. Cir. 2006).  The question has always been what will rise to the level of “administrative error”.   The following situations are known to be administrative error: the Agency misrepresents the amount of the deposit, gives an inaccurate amount, or confuses the employee as to the amount of the deposit or the effect of any failure to make the deposit on the annuity recalculation.

The Board’s recent decision in Hendricks, in the view of this Firm, gives a more helpful understanding of the term “administrative error”.  The case reaffirmed the fact tthat military veterans are entitled to expect that the government will provide them with accurate answers to questions concerning their deposit requirements to enable them to make informed decisions on matters that may significantly affect their annuities.

Certainly this is not a ground-breaking decision for lawyers that practice regularly before the MSPB.  However, the decision in Hendricks will invariably help pro-se appellants, and attorneys who infrequently practice before the Board, to have a more clear and precise picture of what is required to persuade the MSPB to order OPM to accept a late deposit for post-56 military service.

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 Catch-62 issues, or OPM’s reduction of your retirement annuity at age 62, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

In this case, our client claimed she was coerced into accepting early retirement under a VERA/VSIP program while suffering from a mental incapacity that rendered her unable to make an informed decision to retire.

The Agency claimed that the client was a poor performer who accepted the VERA/VSIP to avoid being fired for poor performance.

After a full day of hearing before an MSPB Judge, the Agency agreed to settle the case. In general terms, the Agency agreed to reinstate the employee, “unwind” the VERA/VSIP, pay a lump sum in damages to the Appellant, and allowed the employee to continue in a new position with the Agency outside her old chain of command without any interruption of her service computation date.

This settlement took nearly 3 months to negotiate, due to the difficulty in unwinding a retirement action such as a VERA/VSIP, and is not be possible in every situation.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about constructive retirement appeals, or negotiating complex settlement agreements with Agency attorneys, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

If an Agency attorney has offered you a settlement proposal, you can bet that (s)he had a supervisory attorney review the agreement before it was sent to you.  As a pro-se Appellant, you don’t have the luxury of a team of experienced attorneys offering you insight into a settlement agreement that the Agency has just offered you.

The Attig Law Firm, PLLC, will review your settlement agreement for a small fixed fee.   For that fee, an attorney will review and evaluate the Agency’s written settlement offer, and spend up to thirty (30) minutes discussing the offer.  Our primary focus is to advise you whether the terms are reasonable given the goals you are trying to accomplish and/or whether there are any potential pitfalls, red-flags, or Agency “gotchas” in your settlement agreement.

In order to do this review, it will be necessary for you to have a written settlement offer from the Agency.  If you are interested in taking advantage of this service, and would like to have your Settlement Agreement reviewed by a lawyer with experience negotiating many dozens of settlement agreements before the MSPB, please send an email to the Attig Law Firm, PLLC, today.

We will send you more information, including a list of documents to send us as well as any fees, to the contact information you specify in your email.

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.

One of the reasons for this is the statute itself is poorly written and so narrowly interpreted that it often fails to provide any real protection to those that try to keep our Executive Branch safe, dignified, and fiscally sound.

Another reason is that the Agency that is charged with the task of protecting Executive Branch Whistleblowers is itself under investigation for whistleblower reprisal and, well, gross mismanagement.

A third reason is that well-paid and under-worked government attorneys (just kidding, for my friends on the other side of the bar) can be very creative legal thinker. As is the case in any area of the law, bad facts in a handful of cases have turned into bad law in myriads of cases.

In any event, here are the subjects of some upcoming posts about the Whistleblower Protection Act, and reprisal appeals before the MSPB. As the articles are posted, you will be able to click the underlined text and review that post.

Post 1: Introduction to Whistle-blower Reprisal thread

Post 2: What is the Whistle-blower Protection Act

Post 3: Are you a Whistle-blower?

Post 4: To OSC or not to OSC: Administrative Remedies under the Whistleblower Protection Act

Post 5: Burdens of Proof - Jurisdictional v. Merits

Post 6: The Invisible Nexus: Discovery in Whistleblower Reprisal cases

Post 7: Damages in Whistleblower Reprisal Cases

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.

That survey, though not entirely scientific, revealed that out of 52 non-retirement actions before the Board, the  employee  only prevailed (won after hearing) 2% of the time.   That ratio is consistent with the trend before the Board over the past several years.

Given the unlikely odds of prevailing before the MSPB, in most cases, settlement is the best option for the employee-appellant.   A settlement can offer the employee to accomplish  things that they couldn’t accomplish in hearing.  For example, in one recent settlement entered by one of our clients, an Agency agreed to pay the costs of depositions taken by the Appellant.  Even if our client won on appeal, they would not have been reimbursed these costs because the MSPB has held that deposition costs are non-compensable in an attorney-fee petition.

In another example, an Agency agreed to give a positive letter of reference to an appellant as part of a much broader settlement package.  Even if the employee won on appeal, no MSPB judge can order an Agency to give an employee or former employee a positive letter of reference.  Having a positive letter of reference from a government supervisor, as opposed to a performance-removal  on his record, helped this particular employee immensely in his search for a new (and better) job.

Because of the many possibilities for settlement before the MSPB, and because of the many dangers and risks associated with settling your MSPB Appeal, Mr. Attig intends to publish and sell a handbook on MSPB Settlements in the Fall/Winter of 2008.   The Handbook will include a discussion of many of the most common settlement terms, tips for how to negotiate a settlement agreement, and samples/drafts of settlement agreements.

If you are interested in receiving an email or letter announcing the publication of the MSPB Settlement Handbook, please send an email to the Attig Law Firm, PLLC.

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 the settlement in your MSPB appeal, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

In summary, a “coerced retirement” is a retirement action, that would typically be voluntary, but for the coercive actions of an Agency.  The MSPB only has jurisdiction over a coerced retirement in a handful of situations described in our earlier blog entry.  One of those situations over which the MSPB has jurisdiction occurs when an Appellant alleges that his/her retirement was the result of a medical incapacity to make the decision whether or not to retire.

Generally speaking, to prove up a claim that an employee was medically incapacitated to make the decision to retire, that employee will need  medical testimony to establish the nature of the condition, and how the condition incapacitated the employee.  In nearly every instance, the smart Agency Counsel will produce a medical expert to testify how the employee’s medical condition did not medically incapacitate the employee in the making of the decision to retire.

The question for the MSPB Judge becomes how to evaluate or weigh the testimony of the “competing” experts.   Early in March 2008, the Full MSPB issued a decision analyzing what  type of medical evidence would be needed to prove such a claim.   Adams v. United States Postal Service, 2008 MSPB 46 (March 5, 2008), MSPB Docket No. AT-0752-07-0473-I-1.  This decision also provided some insight into how an MSPB judge should weigh medical testimony in an appeal of a constructive retirement.  The board said that the Judge should weigh:

“…[W]hether the opinion was based on a medical examination, whether the opinion provided a reasoned explanation for its findings as distinct from mere conclusory assertions, the qualifications of the expert rendering the opinion, and the extent and duration of the expert’s familiarity with the treatment of the appellant.”

Basically, otherwise credible and well-reasoned  testimony from the Appellant’s treating physician should “trump” the non-evaluating expert of the Agency.

You can read the full Adams decision on the MSPB website by clicking here.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

Chris Attig, a lawyer with the Attig Law Firm, PLLC, has handled “coerced retirement” appeals before the Merit Systems Protection Board.  Mr. Attig says that these appeals present a very unique challenge for appellants: “The Appellant has to overcome a jurisdictional hurdle before getting to discovery.  The Appellant then has to pay extra close attention in discovery to ensure that the Appellant has the documents and evidence necessary to successfully attack the Agency’s case.  On top of that, there is almost no likelihood of settlement.  Agencies rarely want to get involved in the intense amount of detail and coordination  that a “coerced retirement” settlement agreement requires. ”

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 coerced retirement or constructive action appeal.  If you think that your Agency may have coerced you into retiring, contact the Attig Law Firm, PLLC, to schedule a telephone consultation.

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.

This post - indeed, any post on this website - is not legal advice, is not 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 veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the final way to establish service-connection: “Connection due to injury caused by treatment in the VA healthcare system”.

This is a pretty straightforward issue.  38 U.S.C. 1151 states that if a veteran is injured because of VA hospitalization, treatment, rehab or therapy that is not the fault of the veteran, the injury is treated as service-connected.  You will have  to show fault, whether that fault is through negligence, lack of proper skill, carelessness, error in judgment, etc.  To show fault, you will need a medical expert opinion.  Medical experts can charge very high rates for their services.  In addition, to prove an “1151 claim”, you will need to show:

1. Additional disability or death.  The VA will compare your condition immediately prior to treatment to your condition immediately after treatment by the VA to determine the existence of an additional disability.
2. VA Hospital Care, Medical treatment, surgery, or examination.  The term Hospital Care is narrow - prior to 1997, an 1151 claimant needed only show “hospitalization” which could have included anything that occurred general experience during the course of VA treatment.  Now, the tighter showing of Hospital Care is necessary.
3. Proximate Cause.  This is a legal term that establishes the “bridge” between the VA treatment and the additional disability.  Proximate cause is a legal term, and the VA defines it as such: “the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.”  Additionally, you will need to show “actual cause”.  The good news is that the burden of proof for this element is the “balance of the evidence” - which lies somewhere between substantial evidence and preponderance of the evidence.

Most veterans we have talked to that have been injured by for the above reasons want to talk to us about suing the VA for medical malpractice?  The answer is generally, yes.    This type of lawsuit is permitted under the Federal Tort Claims Act (FTCA).  The FTCA is a separate matter entirely, and will be the subject of a future post.

A section 1151 claim is a straightforward, but fact and law intensive, means to service-connect a disability.  Often times, you will need the assistance or guidance of a Veteran Service Organization or a VA Benefits lawyer to help you establish the requisite degree of proof.  If you would like to consult with legal counsel regarding your VA disability compensation or other VA benefits claim, contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.