Category Archives: MSPB

The Merit Systems Protection Board

merit

The Merit Systems Protection Board (MSPB) is an independent and semi-judicial agency and is known as the “guardian of Federal merit systems”. It is part of the Executive Branch of the U.S. government and was established in 1979.

Appeals

If you are a civil servant and lose your job, generally you can appeal to the MSPB. They also handle suspensions lasting more than 14 days, pay/grade reductions, and furloughs lasting less than 30 days. Further, they handle a lot of retirement matters, especially if a federal disability retirement case has been denied twice.

Under the Whistleblower Protection Act of 1989, a federal employee who alleges a personnel action was taken (or threatened) due to whistleblowing may seek corrective actions from the Board directly. They also deal with cases that have a discrimination aspect to them.

If an employee is not satisfied with the Board’s final decision, they can request that the Equal Employment Opportunity Commission review the Board’s decision. Then, if the EEOC and Board can’t come to an agreement, the case if then referred to the Special Panel for final resolution. The Special Panel consists of a chairman who is appointed by the President, one member of the Board appointed by the MSPB Chairman, and finally one EEOC Commissioner appointed by the EEOC Chairman.

Merit Systems Studies

The Board also conducts merit systems studies. Earlier this year, the MSPB reported on its study of effective hiring practices in the federal government. They analyzed data and examined all areas of the hiring process, including internal processes, advertising online, and candidate assessments.

Organizational Principles

MSPB follows a list of merit systems principles. They include:

  • Encouraging diversity in hiring practices
  • Non-discrimination on basis of gender, race, religion, marital status, national origin, political affiliation, handicapped condition
  • Equal pay for work of equal value
  • Protection from reprisals if an employee reports misdeeds such as waste of funds, mismanagement, or danger to public health

Filing an Appeal

Most appeals are covered under 5 C.F.R. §§ 1201.24. An appellant can raise a claim or defense, not included in the appeal, at any time before the end of any conferences being held, to define the issues in the case. After that time, no new claims or defense can be raised, except for a showing of good cause.

Most appeals must be filed within 30 days of the initial agency action, or within 30 days of receiving the agency’s decision, whichever is last. If the parties agree to attempt a mediation, that creates an extension. As a result, the amount of time to file is extended by 30 days. This brings the total time frame to 60 days.

After Filing an Appeal

The Administrative Judge assigned to the case will issue an Acknowledgement Order. This sends a copy of the appeal to the agency and it directs the agency to submit a statement to its reason for taking the action/decision being challenged. The Acknowledgement Order will also order the appellant to submit evidence and make arguments.

The AJ will issue notices and orders and generally hold one or more prehearing conferences. The purpose of these is to clarify and narrow down the issues being appealed. After the hearing, the AJ issues an initial decision. The decision is required to identify all material issues of fact and law, summarize evidence, resolve any creditability issues, and include the AJ’s conclusions of law and legal reasoning.

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MSPB Chairman Resigns

resignation

The Chairman of the Merit Systems Protection Board (MSPB), Susan Tsui Grundmann has announced her resignation effective January 7, 2017. Grundmann, appointed by President Barack Obama and confirmed by the Senate in 2009, had a term that expired on March 1, 2016. However, she has been serving in a holdover capacity pursuant to 5 U.S.C. § 1202. Her current contract had an expiration date of March 1, 2017. She gave no explanation for the reason of resignation.

In addition, the Vice Chairman position has been vacant since March 2015, leaving only one member, Mark Robbins. He assumed the role in 2012 and is now serving in an administrative and executive role for the MSPB.

So how does this affect federal workers?

Due to the existing vacancy and Grundmanns’ sudden resignation, there is a loss of Board quorum. Quorum is the minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid.

Petitions are still being accepted and the filing deadlines remain the same; however, the Board won’t be taking any action for the foreseeable future until President-elect Donald Trump nominates someone new. This also means that the Board can’t issue final rulings on appeals, issue study reports, or perform other normal functions. Which means the already long wait times on cases just got longer.

Board administrative judges will still hear appeals and issue initial decisions. If neither party files a petition for review of the initial decision, the appellant may exercise their right and appeal directly to the U.S. Court of Appeals for the Federal Circuit, another U.S. court of appeals, or the U.S. District Court. Deadlines remain the same.

Essentially, until one new member receives a nomination and confirmation, the MSPB Board can’t operate normally.

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What is the MSPB?

mspbFederal workers who can no longer perform their job duties may be eligible for Federal Disability Retirement. If you apply and are denied twice through the OPM, you can appeal that decision. This time, your case is reviewed by the MSPB. This is a much more formal process than dealing with the Office of Personnel Management.

What is the MSPB?

The MSPB is a quasi-judicial body. This means it’s a tribunal board of a public administrative agency and has powers and procedures resembling those of a court of law or a judge. They are obligated to objectively determine facts and draw conclusions from them so they can provide a basis for an official action.

How does the MSPB play a part in Federal Disability Retirement cases?

If your case is denied at the Reconsideration level, you can appeal that decision. Your appeal must be filed within 30 days after the date of the decision, or 30 days after the receipt of the decision, whichever is later. There is an e-file system in place that makes it easier to appeal within the allotted time. In your denial packet, you will be provided with the address of the MSPB. Make sure to verify this address! You want to ensure your appeal is sent to the correct office. At this point in the process, the OPM has no control over your case. That falls to the Administrative Judge (AJ).

To learn more about the MSPB and how they process appeal claims, read more at the link below.

What is the Merit Systems Protection Board (MSPB)?

Harris Federal Law Firm has been helping federal workers for over a decade. If you are applying for Federal Retirement Disability, or have had your case denied, please don’t hesitate to call us! There are very strict deadlines to meet and we want to help you as best we can. Call us at 877-226-2723 or fill out this inquiry form for a FREE consultation.

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Federal Disability Retirement – MSPB Success Story

D.C. was a 17 year USPS employee, working as a Mail Processing Clerk in Chicago, Illinois. Due to her medical conditions, she was no longer able to successfully perform all of the requirements of her job, even after accepting a modified job in 2001. She requested further accommodation in 2010, but was denied by her employer. As a result, she made a timely application for federal disability retirement in 2010, due to the worsening of her cardiomyopathy, fibromyalgia, dizziness, and pain in her hip, right knee, wrists, and hands.

Unfortunately, the Office of Personnel Management (OPM) denied her application in both their initial decision and the reconsideration decision. She appealed to the Merit Systems Protection Board (MSPB) pro se, but discovered, like many other federal employees, that the MSPB is a different and more complicated arena. Upon the suggestion of the presiding Administrative Judge, D.C. sought professional assistance for her pending appeal. After speaking with senior attorney, Mr. Brad Harris, D.C. decided to hire Harris Federal Law Firm.

Mr. Harris was able to enter the appeal as D.C.’s representative and secure an extension of time to gather medical records and employment records for her case. Mr. Harris and his legal assistant, Leah Bachmeyer, put together a strong set of prehearing submissions, complete with over 800 pages of additional evidence. As a result, the OPM reversed its position, granting D.C. disability retirement benefits, and D.C.’s appeal never proceeded to a formal hearing.

If you or someone you know needs to speak to a professional about federal disability retirement benefits, call Harris Federal Law Firm. We are here to help!

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There’s More to it Than Just Objective Medical Evidence

This claimant was an employee of the U.S. Postal Service from 1974 through 1999. He was a Supervisor of Computer Mail Forwarding Operations for most of his employment and still occupied that position when he first applied for federal disability retirement. After that first application for disability retirement was denied, he was reassigned to the position of Supervisor of Distribution Operations. Not one to be dissuaded, claimant filed again! But because he had been reassigned, his application was deemed to have been withdrawn and he was dismissed for lack of jurisdiction. This means that he was denied because the OPM didn’t think it had power to grant anything since claimant’s first application for disability retirement was thought to have been withdrawn.

Claimant still did not give up! He filed a new application for federal disability retirement, stating that he was unable to perform his job duties because of a number of physiological and psychiatric disabilities, including chronic and severe neck and back pain, carpal tunnel syndrome, major depression, and an inability to concentrate. When he appealed to the Merit Systems Protection Board (MSPB), he was denied by order of the administrative judge, despite the fact that the OPM hadn’t even bothered to show up at the hearing.

He appealed using a petition for review, arguing that the MSPB administrative judge had made a mistake. He also attached additional evidence for the Board to consider, but the evidence was not considered because the Board won’t consider evidence submitted for the first time with a petition for review unless it’s shown that the evidence was unavailable before the record was closed despite the claimant’s due diligence. Even without the aid of new evidence, the Board found that the claimant had indeed established that he had met the requirements for federal disability retirement.

Claimant had supplied testimony from his physician, psychologist, and himself as to the medical and psychological conditions that prevented him from working. While there was no documentary evidence of objective clinical findings, the Board found that it was error for the administrative judge to deny the application solely because of that. Objective medical evidence is only one of several factors to be considered by the Board. The failure to submit objective medical evidence cannot be the one and only reason for denying disability retirement.

This case teaches us that lack of objective medical evidence is not a complete bar to federal disability retirement benefits. The Board must consider other evidence that an applicant produces, and such other evidence may be sufficient in proving medical disability.

– Harris Federal Law Firm

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Battle of the Doctors! Who’s More Convincing?

The claimant, Mr. Z, was removed from his position as Military Pay Clerk under the Army because of excessive unauthorized absences from work. He then applied for federal disability retirement benefits due to his heart condition and post-polio syndrome, stating that these conditions had interfered with his attendance and job performance.

When the Office of Personnel Management (OPM) denied his application, Mr. Z appealed to the Merit Systems Protection Board. There, the administrative judge reversed the OPM’s decision. Even though there was conflicting medical evidence, the judge found that Mr. Z’s absences were due to his Post-Polio Syndrome.

Unfortunately, Mr. Z died of a heart attack before the hearing. Even though the claimant was dead, the OPM appealed the administrative judge’s decision. The OPM said that the judge was incorrect in his decision because of the conflicting medical evidence. The evidence given by Dr. A, Mr. Z’s doctor, directly conflicted with the Army’s physician, Dr. B, so the judge’s ruling wasn’t consistent with all the evidence. With Mr. Z dead, his widow, Mrs. Z, continued to assert her late husband’s claim.

Determining how persuasive medical evidence can be a bit tricky. It really depends on whether or not the evidence provides a good explanation of how a certain medical condition makes it difficult or impossible for the claimant to perform his job duties. Additionally, the extent and duration of the doctor’s familiarity with the claimant’s condition (as well as that doctor’s qualifications) can make his medical opinion more convincing.

In this case, the Army’s Dr. B had only seen Mr. Z once—several months before his removal. Dr. A, on the other hand, had seen Mr. Z many more times over a bigger time span. Dr. A also had more experience and training in a more relevant medical field, with a number of patients who were suffering from the same condition as the claimant. As such, Dr. A’s opinion was far more convincing than Dr. B’s opinion.

Because Dr. A’s opinion was more persuasive, the Board affirmed the granting of federal disability retirement benefits to Mr. Z. This case shows us that when a medical opinion is given by a doctor who is familiar with the claimant’s condition, that opinion is given more consideration and is very persuasive, especially where the expert can give a good explanation of how parts of a condition prevent a claimant from doing his job.

Harris Federal Law Firm

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SUCCESS STORY: DOMICILIARY ASSISTANT IN TEXAS

D is a 62 year old man who suffered from a myriad of conditions, including PTSD, depression, diabetes mellitus, diabetic neuropathy, heart disease and gout. As a veteran, he had served in the United States Army, where he endured many unfortunate events which led to the eventual diagnosis of his PTSD and depression. Fortunately, D was able to find a fulfilling job as a Domiciliary Assistant for the VA. He enjoyed his job and rendered useful and efficient service for a number of years.

However, his war experiences began to haunt him again and he became anxious, paranoid, and depressed. D was officially diagnosed with PTSD and depression after visiting the VAMC. These conditions began negatively affecting his work life, and he knew that something needed to be done. Upon the advice of his supervisor, D decided to apply for federal disability retirement benefits. To help him through this process, he contacted Harris Federal Law Firm. Despite ample medical evidence, the Office of Personnel Management (OPM) denied D’s application and he was forced to appeal to the Merit Systems Protection Board.

At the Merit System Protection Board level, it was discovered that the OPM somehow lost a number of D’s previously submitted medical records, which provided ample support to his claim for federal disability retirement benefits. Despite this mistake, the OPM decided to proceed at the appeal level. Harris Federal Law Firm resubmitted their case file to the OPM and the Board, along with updated medical records and a strong legal brief in support of D’s application. Upon reviewing the submissions, the OPM realized its mistake and reversed its position before a hearing could take place, thus granting the applicant his federal disability retirement benefits.

Harris Federal Law Firm

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Accommodation Shouldn’t be That Hard to Prove

Accommodation Shouldn’t be That Hard to Prove

After over 20 years of dedicated service as an employee of the U.S. Postal Service, Claimant applied for federal disability retirement due to mental impairments, including personality disorder and depression. Her psychological injuries made her miss work and, when she did go to work, kept her from doing her job well.

The claimant had a lot of evidence supporting her. Her doctor was very clear about claimant’s problems being real and debilitating.  Her supervisor agreed with the assertion that claimant was unable to continue working because of her conditions. The supervisor stated that her performance was less than satisfactory and that her attendance was unacceptable. Even the Postal Service itself had certified that accommodation of the claimant was not possible. The Postal Service stated that the severity of her condition and the requirements of her position made accommodation impossible.

Despite the overwhelming evidence, the Office of Personnel Management (OPM) denied her claim, asserting that she had not proven that she could not be accommodated in her position. What was even stranger was that the administrative judge at the Merit Systems Protection Board (MSPB) agreed with the OPM! The judge seemed to think that the Postal Service’s certification was the only recorded evidence that addressed accommodation. The MSPB judge didn’t think that the certification was enough and that the claimant had not bet her burden of proof.

The Claimant, however, persisted and appealed the Board’s decision. On appeal, the Court reversed and granted the claimant federal disability retirement benefits. The Court found it very important that the OPM had not even tried to challenge the certification issued by the Postal Service. Furthermore, other evidence from the record clearly supported the conclusion that accommodation could not be made for the claimant at her old position.

This case teaches us that proving accommodation can’t be made shouldn’t be impossible. The claimant had offered an abundant amount of proof concerning accommodation and the OPM still denied her claim. The Court had to set the record straight regarding what a claimant needs to prove. The OPM and administrative judge were wrong to say that claimant hadn’t met her burden. She had evidence that accommodation wasn’t feasible from a doctor, her supervisor, and her employing agency—that was enough!

Harris Federal Law Firm

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Helpful Terminology for Federal Employee Benefits

Federal employees are often unfamiliar with the lingo and terms used for disability retirement, workers compensation or even their retirement programs.  However, when you have been injured on the job, develop a disability or qualify for retirement knowing and learning these terms will be helpful.

Here are some basics and their meanings.

  • OWCP – Office of Workers Compensation Programs
  • DOL – Department of Labor
  • OPM – Office of Personnel Management
  • MDR – Medical Disability Retirement (same thing as FDR)
  • FDR – Federal Disability Retirement (same thing as MDR)
  • FERS – Federal Employee Retirement System
  • CSRS – Civil Service Retirement System
  • TSP – Thrift Savings Plan
  • High 3 – Three highest consecutive years of earning or salary averaged together
  • SSA – Social Security Administration
  • SSD – Social Security Disability
  • VA – Veterans Administration
  • CSA – Civil Service Account
  • MSPB – Merit Systems Protection Board
  • HR – Human Resources
  • LAS – Legal Administrative Specialist
  • COLA – Cost of Living Adjustments
  • EA – Employing Agency
  • IW – Injured Worker
  • DOI – Date of Injury
  • MMI – Maximum Medical Improvement
  • IME – Independent Medical Exam
  • SECOP – Second Opinion Exam
  • DSR – Discontinued Service Retirement

Harris Federal Law Firm 

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Federal Disability Retirement: Your Statements Concerning Pain are Important!

Your Statements Concerning Pain are Important!

            Ms. Y was a Distribution Clerk for the U.S. Postal Service. Because of severe migraine headaches, she had an excessive number of absences from. Her supervisor stated that her attendance had become unacceptable, so Ms. Y applied for federal disability retirement. She claimed that her headaches prevented her from performing her job duties. The Office of Personnel Management (OPM) denied her application, stating that she hadn’t proved the existence of a disabling condition.

Ms. Y appealed, but the administrative judge at the Merit Systems Protection Board affirmed OPM’s rejection. The judge said that the medical evidence didn’t provide any explanation of how Ms. Y’s condition made her unable to perform her job duties. Additionally, he stated that Ms. Y had failed to show that her unacceptable attendance was caused by her condition. Ms. Y appealed again.

The Board ultimately disagreed with OPM and the administrative judge, stating that this was not a case where the existence of a condition depends on specific relations between particular medical conditions and certain job requirements. In determining the ultimate fact of disability, Ms. Y’s own testimony of subjective pain and inability to work had to be seriously considered, especially since it was supported by competent medical evidence.

Her account of the nature, severity, and frequency of her migraine headaches was supported by the reports from several treating and consulting doctors. The fact that the doctors’ reports were not supported by objective clinical tests and findings didn’t really matter since there are no physical changes ordinarily associated with migraine headaches other than the changes associated with pain.

Accordingly, the Board found that Ms. Y had proved that her migraines prevented her from performing her job requirements as a Distribution Clerk. This case teaches us that an applicant’s subjective statements as to her condition must be seriously considered, especially where such testimony is backed by relevant and current medical evidence. Additionally, this case shows that medical conditions which have no specific physical changes that can be detected will not prevent an applicant with such a condition from getting federal disability retirement benefits.

Harris Federal Law Firm

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