In a recent decision, the  MSPB clarified what constitutes a personnel action in an Individual Right of Action (IRA) Appeal.  Weed v. Social Security Administration, 2010 MSPB 23 (January 28, 2010).

In that case, an applicant for Federal Employment complained that an Agency decided not to select him for a postion in reprisal for disclosures he had made in 2006 [...]]]> The new Full MSPB has released what appears to be a first step towards improving the protections for Federal employees who are whistleblowers.

In a recent decision, the  MSPB clarified what constitutes a personnel action in an Individual Right of Action (IRA) Appeal.  Weed v. Social Security Administration, 2010 MSPB 23 (January 28, 2010).

In that case, an applicant for Federal Employment complained that an Agency decided not to select him for a postion in reprisal for disclosures he had made in 2006 to the Office of Special Counsel (OSC). The  MSPB Administrative Judge specifically found that the appellant did not have standing to file an IRA appeal because he was not an agency employee or applicant for employment with the agency when he made his 2006 disclosures to OSC or when the agency allegedly took, or failed to take, a personnel action with respect to him.  In other words, the MSPB Administrative Judge found that the Whistleblower Protection Act (WPA) only protected whistleblowers that were harmed by the same agency against whom they blew the whistle and were employed by that Agency when the reprisal existed.

This is one example of how, over the past decade or longer, Administrative Judges of the  MSPB, helped by a pro-Agency Full MSPB has slowly eroded the Whistleblower Protection Act (WPA), with the end result that Federal Employees do not feel safe reporting government waste, fraud, abuse, threats to public health or safety, or government vilations of law without a substantial fear that they will lose their career or income.

Attorney Chris Attig said: “It has gotten so bad in the  MSPB that unless you blow the whistle on Tuesday afternoon, between 1 :01 and 1:03 pm, to an undisclosed individual outside your chain of command who goes by the code-name “Mr. Smith”, while wearing green shoelaces and speaking in professorial English accent, you do not get whistleblower protection or relief through the MSPB.”

Mr. Attig’s colorful reference is backed up by statistics; the Legal Director the Federal Ethics Center, David B. Nolan, says: “In the thirty-one years since the passage of the CSRA, twenty-five thousand whistleblowers have alleged fifty thousand violations of law to OSC. Out of this number, OSC misfeasance and malfeasance have limited the number of corrective actions to fewer than two hundred.”

Against this back-drop, the new members of the  MSPB took action – and they did it well.  The new members started with Federal Court cases and the Board’s own precedent to the effect that the Whistleblower Protection Act (WPA) is a remedial statute, and Administrative Judges should construe its terms broadly.  The members then proceeded to explain that the failure to give such  a broad reading to the  Whistleblower Protection Act (WPA) runs counter to the intent of the law.

Next, the  MSPB proceeded to explain that a whistleblower does not need to be an employee, an applicant for employment or a former employee at the time he/she made his protected disclosures.  To those of us in the real world, this makes good sense –  as the new Board members noted, such a limitation would not provide whistle-blower protection to those who know of government waste, fraud or abuse or violation of law, but who are not employed by the government or a particular agency when they disclose it.   In other words, under the old analysis, whistleblowers at the Internal Revenue Service who tried to leave and go to Bureau of Engraving and Printing would not be considered whistleblowers deserving protection from reprisal because they didn’t blow the whistle against the ‘new’ Agency.

Most interesting, though, was the  MSPB’s analysis of the question of whether or not the failure to fill a vacancy announcement could be considered a personnel action against a Whistle-blower who had applied for the job.  The  MSPB made this statement in dicta in the decision:  ”Given that an agency’s action can be considered a covered personnel action simply by leaving a position vacant and not filling it with anyone, then an agency could engage in a prohibited retaliatory personnel action by intentionally using a particular selection process as part of a scheme that would deny a whistleblower an opportunity to seek the appointment.”  This phrase is not the holding of the case – just dicta that helps lawyers, practitioners, and observers understand the Courts reasoning.  This reasoning suggests that the days of  MSPB rulings that Federal Agencies have unfettered discretion to cancel a vacancy announcement may be behind us.

The new  MSPB did not find that the employee in this case was a whistle-blower, only that the  MSPB Administrative Judge had jurisdiction to hear his case.  For that reason, the new MSPB’s decision is particularly well-received: it allows the Appellant the right to his “day in Court”, where one can only hope that his chances turn on how well he presents his facts and legal arguments to the MSPB Administrative Judge.

The bottom line is that the MSPB, in a very well-reasoned and simply explained decision, effectively gave CPR to the Whistleblower Protection Act (WPA) anti-reprisal provisions.  The Whistleblower Protection Act (WPA) is not alive and well, just yet, but it just might make it to the hospital.

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 your Agency has taken an adverse action against you based on careless or negligent performance of duties, contact an attorney familiar with  MSPB appeals.

You can read more [...]]]> OPM is proposing changes in the rules regarding maintenance of personnel files, known as Official Personnel Folders (or, OPF), for former federal employees.  Under the proposed rule change, OPM wants the OPF’s to be solely under the employing agency’s control until the worker leaves the government. Then OPM would be responsible for maintenance.  OPM also wants to change the rules to require the employing agency to be charged for requests for copies of former federal employee OPFs.

You can read more about the case on the Federal News Radio website.

The Attig Law Firm represents federal employees and postal workers nationwide in their disability retirement applications, disability discrimination claims, wrongful suspension and termination claims, and other employment related matters, including appeals to the MSPB, discrimination claims before the EEOC, and other OWCP and OPM matters.  No post on this website is legal advice or intended to be legal advice; the Firm believes that Information is Power, and attempts to provide Federal employees and Postal workers with more information about their MSPB, EEOC, OPM and OWCP appeal rights.

You can read more about the case on the Washington Post (Federal Diary) website.

The Attig Law Firm represents federal employees and postal workers nationwide in their disability retirement applications, disability discrimination claims, wrongful suspension and termination claims, and other [...]]]> A federal employee is suing  OPM based on its denial of federal health insurance benefits.  The federal employee is a lawyer employed by the U.S. Court of Appeals for the 9th Circuit. She was married in California when the state permitted same-sex marriages.

You can read more about the case on the Washington Post (Federal Diary) website.

The Attig Law Firm represents federal employees and postal workers nationwide in their disability retirement applications, disability discrimination claims, wrongful suspension and termination claims, and other employment related matters, including appeals to the MSPB, discrimination claims before the EEOC, and other OWCP and OPM matters.  No post on this website is legal advice or intended to be legal advice; the Firm believes that Information is Power, and attempts to provide Federal employees and Postal workers with more information about their MSPB, EEOC, OPM and OWCP appeal rights.

The SAVE program (Securing Americans Value and Efficiency Award) recognizes citizens that come up with ways to save the Federal Government money.

This Federal Employee’s idea was to allow patients who leave VA hospitals to keep inhalers, eye drops or other leftover medications when they leave the hospital.  Until now, the VA would throw away those medicines, and then [...]]]> A Federal Employee won recognition from President Obama by proposing an idea that could save the Federal Government up to $3.8 million annually.

The SAVE program (Securing Americans Value and Efficiency Award) recognizes citizens that come up with ways to save the Federal Government money.

This Federal Employee’s idea was to allow patients who leave VA hospitals to keep inhalers, eye drops or other leftover medications when they leave the hospital.  Until now, the VA would throw away those medicines, and then help the veteran pay for new medication after they go home.  Essentially, the VA was paying twice for these medications.

Read more about this Federal Employee by cutting and pasting this link:  http://blogs.wsj.com/washwire/2009/12/21/obama-awards-budget-minded-federal-employee/

The reason I say this is the wrong question is that the Federal employee does not want to go out and find some random doctor who will support their claim that they are unable to work and therefore eligible for federal  disability retirement. On the other [...]]]> The title of this post has been appearing in recent emails and contacts to our Firm with increasing frequency. In the opinion of this author, it is the wrong question to be asking.

The reason I say this is the wrong question is that the Federal employee does not want to go out and find some random doctor who will support their claim that they are unable to work and therefore eligible for federal  disability retirement. On the other hand, many doctors are unwilling to get involved in their patients’ legal matters, and highly averse to litigation, so asking your doctor to support your claim for federal  disability retirement may not be the right way to approach the situation either.

To understand what you need from your doctor, or how to approach your doctor, it is important to get an understanding of how OPM and the MSPB will view doctors reports, notes and records of treatment in an application or appeal for federal disability retirement.

Doctor Opinions. The  MSPB Administrative Judge will likely only consider persuasive a doctor’s conclusion that an employee is disabled only if the physician explains how the medical condition affects the employee’s specific work requirements. (The one exception to this rule is when the medical evidence “unambiguously and without contradiction indicates that [the appellant] cannot perform the duties or meet the requirements of his position.”)

Doctors Reports. Medical reports that do not include reasoned explanations of how the medical condition affects the ability of the patient to perform essential functions of a position do not support a finding of eligibility for federal disability retirement. Certain Judges in the  MSPB seem to hold strongly to the concept (wrongly, in my personal opinion) that Doctors’ detract from the evidentiary weight of their own opinions by preparing reports that don’t explain the basis for their diagnosis with objective clinical findings.

Treating Doctors versus Testifying Experts. The  MSPB and  OPM have both expressed difficulty with testifying experts in federal  disability retirement appeals. This comes out in statements in the initial decisions suggesting that the “probative weight of medical opinion” is enhanced by the “extent and duration of medical expert’s familiarity with appellant’s treatment”. What that means is that the  MSPB Judge could give less weight to a doctor’s opinion if a federal employee hires a doctor solely for the purpose of offering a report as to whether the federal employee is unable to perform the essential functions of a job. This does not mean that you can’t hire a non-treating medical expert to offer an expert opinion as to whether or not you are medically able to perform the essential functions of your job; as with anything in the law, such matters depend greatly on the particular facts of a particular case.

In light of the above, the best medical evidence supporting a federal employee application for federal disability retirement is the treating doctor’s well-reasoned expert opinion as to whether and how the employee’s medical condition prevents them from accomplishing the essential functions of the federal employee’s job. This can often be accomplished by asking your doctor the right questions and providing your doctor with the right material on which to base their opinion.

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.

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 with Merit Systems Protection Board (MSPB) and disability retirement 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.

Wage grade employees, who are paid under a separate system, will have their raises capped at the amount going to GS employees in their location; wage grade raises are paid at varying times of the year.

New pay tables will be issued with an upcoming presidential order on the raise, [...]]]> December 16, 2009:  Congress has finalized a 2 percent raise for General Schedule (GS) employees.  The budget measure specifies paying 1.5 percentage points to base pay and splitting funds for the remaining half-percent as locality pay.

Wage grade employees, who are paid under a separate system, will have their raises capped at the amount going to GS employees in their location; wage grade raises are paid at varying times of the year.

New pay tables will be issued with an upcoming presidential order on the raise, which will be effective with the first full pay period of the new year.

The Attig Law Firm represents Federal Employees in MSPB Appeals, EEOC Complaints, OWCP claims, schedule award requests, federal disability retirement applications to OPM and appeals to the MSPB, and much more.  The Firm also provides representation to  U.S. Veterans who were injured in military service in their claims for disability compensation benefits from the VA, the Board of Veterans Appeals (BVA), the Court of Appeals for Veterans Claims (CAVC), and the Federal Circuit Court of Appeal (Fed Circ).  Click here for a full listing of the Attig Law Firm’s Practice Areas.

You can see the schedule by following this link:  http://www.opm.gov/oca/pay/backpay/HTML/BACKPAY.asp

The Attig Law Firm represents Federal Employees in MSPB Appeals, EEOC Complaints, OWCP claims, schedule award requests, federal disability retirement applications to OPM and appeals to the MSPB, and much more.  The Firm also provides representation to  U.S. Veterans who were [...]]]> OPM has issued a schedule of the interest rates to be used in calculating Back-Pay awards for the time period beginning April 1, 1989 through the fiscal quarter starting October 1, 2009.

You can see the schedule by following this link:  http://www.opm.gov/oca/pay/backpay/HTML/BACKPAY.asp

The Attig Law Firm represents Federal Employees in MSPB Appeals, EEOC Complaints, OWCP claims, schedule award requests, federal disability retirement applications to OPM and appeals to the MSPB, and much more.  The Firm also provides representation to  U.S. Veterans who were injured in military service in their claims for disability compensation benefits from the VA, the Board of Veterans Appeals (BVA), the Court of Appeals for Veterans Claims (CAVC), and the Federal Circuit Court of Appeal (Fed Circ).  Click here for a full listing of the Attig Law Firm’s Practice Areas.

Many times, an Agency (there are some that do this more than others) will modify the employee’s position or duties in such a way that it is not truly accommodating the employee.  This could take the form of Light Duty, Limited Duty, a modified or make-shift position, etc.  This is not truly an accommodation. An accommodation, [...]]]> One key element to federal government disability retirement under  FERS or CSRS is that the accommodation of the federal employee’s disabling medical condition must be unreasonable.

Many times, an Agency (there are some that do this more than others) will modify the employee’s position or duties in such a way that it is not truly accommodating the employee.  This could take the form of Light Duty, Limited Duty, a modified or make-shift position, etc.  This is not truly an accommodation. An accommodation, for the purposes of federal  disability retirement under  FERS or CSRS is defined as “a reasonable adjustment made to a [Federal employee's] job or work environment that enables the [Federal employee] to perform the duties of [his/her] position.” In other words, an accommodation requires adjustments that allow a Federal Employee to continue to perform his or her official position.  Accommodations can include modifications of the worksite, schedule adjustments, job restructuring, and changes in equipment.  On the other hand, accommodation does not include modified positions, make-shift positions, ad-hoc duties (such as Lobby duties in the Postal Service).

If the Federal Employee’s position is created purely in an attempt to find or make or provide work within a Federal Employee’s medical restrictions, chances are that it does not constitute an accommodation in the position of record.

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.

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) and disability retirement 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.