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The Merit Systems Protection Board (MSPB) has again strengthened due process protections for federal employees, when it cancelled the removal of a federal employee because the agency considered aggravating penalty factors which had not been  disclosed to the employee.  The employee was a criminal investigator who had been terminated from federal service by the Department of Justice on charges of “Conduct Unbecoming a DEA Special Agent” and “Making False Statements.”   Solis v. Department of Justice, 2012 MSPB 21, issued February 28, 2012.

After considering the employee’s reply, the agency decision sustained the penalty of removal. The deciding official found that the charges could be considered  criminal in nature and affect the investigator’s credibility if he testified in criminal prosecutions, raising Giglio issues.  As the MSPB noted, the Supreme Court case of Giglio v. United States, 405 U.S. 150 (1972), requires investigative agencies to turn over to prosecutors any potential impeachment evidence that might affect the credibility of agents involved in that case.   As a result, the investigator’s testimony might have marginal value and the government’s prosecution could be adversely affected in criminal cases.

In the employee’s appeal to the MSPB, it was determined that the Giglio issue, on which the deciding official relied, had never been raised with the employee.  Therefore, the employee was denied his constitutional due process right to respond to that penalty issue.  The MSPB found that the agency’s failure to inform the employee was substantial.  The Solis case notes the factors that the MSPB considers when deciding whether an ex parte communication is constitutionally impermissible: “(1) whether the ex parte communication merely introduces ‘cumulative’ information or new information;  (2) whether the employee knew of the information and had a chance to respond to it; and (3) whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner.”

In Solis, the MSPB found that the deciding official made it clear in his decision that he relied on the Giglio factor when he set the removal penalty.  The MSPB found that the agency’s failure to inform the employee of this information and allow him to respond was a due process violation,  reversing the removal and ordering payment of  back pay.  The Board noted that the employee would be “entitled to a new constitutionally correct removal proceeding.”

Federal disability retirement is a benefit accorded to all federal employees under either the Civil Service Retirement System (CSRS) or the Federal Employees Retirement System (FERS).  Certain minimum requirement must be met in order for an federal employee to be eligible under CSRS or FERS.

• First, for CSRS employees, he or she must have a minimum of five years of service.  For FERS employees, he or she must have a minimum of 18 months of service.
• Second, the employee must have become disabled while employed in a position subject to the retirement system, such that the disability results in deficient performance, conduct, or attendance that is incompatible with the employee continuing to perform useful and efficient service in his or her job.
• Third, a physician must certify that the disability is expected to last a year or more.
• Fourth, the employee’s agency must be unable to accommodate the disability in the employee’s current job or in an existing vacant position at the same grade or pay and in the same commuting area.

To be eligible for disability retirement, an employee does not have to be disabled for any employment at all.  Rather, eligibility requires only that the employee is unable to perform the job to which he or she was assigned, or a job at the same pay in the same commuting area.

Once an employee has met these minimum requirements, an application for disability retirement should be filed (1) with the employing federal agency before separation or (2) with the Office of Personnel Management (“OPM”) within one year of the date of separation from employment.  Additionally, under FERS, an employee must simultaneously apply for social security disability benefits.  OPM will dismiss the FERS disability retirement application should the employee withdraw his or her application for social security disability benefits for any reason.

Should OPM approve the employees application for disability retirement, OPM may require the employee to undergo periodic medical evaluations, the cost of which are the employee’s responsibility, in order to continue receiving benefits.

If OPM denies the application at the initial stage, the employee may seek reconsideration of the initial decision.  If reconsideration does not lead to the application being approved, the employee may file an appeal with the Merit Systems Protection Board (MSPB), which will evaluate and decide the case de novo (without deference to OPM’s decision).

The attorneys of Kator, Parks & Weiser have assisted numerous federal employees with all aspects of the disability retirement process, from compiling the initial submission to MSPB appeals.  To learn more about whether disability retirement is right for you, contact Kator, Parks & Weiser today.

On February 14, 2012, President Obama signed into law the FAA Modernization and Reform Act of 2012.  The statute includes a little known, but very important, “technical correction.”  This correction retroactively restores to the Merit Systems Protection Board all remedial authority for FAA employees.  In the mid-1990s, Congress permitted the FAA to largely opt out of the federal civil service system, and create its own personnel system.  In 2000, FAA was generally placed back under the federal civil service, including under the MSPB’s jurisdiction.  But, whether intentionally or by mistake, Congress failed to restore the applicability of the Back Pay Act to the FAA.  As a result, the MSPB and Federal Circuit Court of Appeals held that FAA employees are not able to recover back pay from the FAA, even when they proved that they were wrongly terminated, suspended, or otherwise deprived of pay by the FAA.

The new law overturns these decisions and restores the Board’s authority to award relief under the Back Pay Act in appeals involving the FAA.  The technical correction thus resolves this longstanding problem for FAA employees, not only in future cases but also for all FAA employees who were prevailing parties against the FAA but were denied relief under the Back Pay Act at any time since April 1, 1996.

Kator, Parks & Weiser is currently assisting a number of FAA employees submit claims for back pay awards due under the new law.  Contact Kator, Parks & Weiser today to discuss the impact of this new law on your claims.

Section 611 of the FAA Modernization and Reform Act states:

Section 40122(g)(3) is amended by adding at the end the following: `Notwithstanding any other provision of law, retroactive to April 1, 1996, the Board shall have the same remedial authority over such employee appeals that it had as of March 31, 1996.’.