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2008

Blog Posts in 2008

  • Federal Disability Retirement: I've been approved for Social Security disability, but denied Disability retirement - what next?

    I have heard from a lot of disability retirement applicants that they have been approved for Social Security disability but later denied disability retirement by OPM. Many of the applicants that call us are confused how this can be, so this blog will attempt to explain how this might happen – and what you can do about it. The biggest reason that you might receive different decisions – a grant of ...
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  • Federal Disability Retirement: FERS/CSRS and light duty accommodations

    When an employee applies for disability retirement under CSRS or FERS, one of the elements that the employee must show is that the Agency is unable to accommodate him or her. In order to prove this element, the agency must review all vacant positions under its jurisdiction at the same grade or pay level and tenure in the commuting area to determine if the employee meets the minimum qualification ...
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  • Federal Disability Retirement: OPM Denied my Disability Retirement Application - What Next?

    You receive the letter from OPM, open it, and find that OPM denied your application for disability retirement benefits under FERS/CSRS. Chances are, you’ll read the letter over and over, and the more you read it, the less sense it will make. What do you do? At this point, your choices depend on what stage of the application you are at. If this is the first indication you have received that OPM has ...
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  • Federal Disability Retirement: Administrative Judge reduces OPM schedule for repayment of overpaid disability retirement benefits.

    Earlier, I posted about the process to seek waiver (or reduction of repayment schedule) of an overpayment of retirement benefits. To give you an idea how this works in reality, I thought I’d break down a recent MSPB Initial Decision (San Francisco Regional Office, October 2008). In that case, the Appellant received an overpayment of retirement benefits. She had applied, and was granted, disability ...
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  • Federal Disability Retirement: How much will my disability retirement annuity be?

    How much will my disability retirement annuity be? Generally speaking, your FERS disability retirement annuity will be 60% of your high-3 average salary minus 100% of your Social security benefit for the first 12 months. After 12 months, the FERS disability retirement annuity is reduced to 40% of your high-3 average salary minus 60% of your Social Security benefit. Please see the OPM Website for a ...
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  • New and Improved ADA? The Americans With Disabilities Amendments Act of 2008

    Earlier this fall, Congress passed the Americans with Disabilities Amendments Act of 2008. The Act takes effect on January 1, 2009, but most attorneys – private sector and government sector alike – are unfamiliar with the strictures of the new law. Most practitioners that are aware of the ADA Amendments Act are unsure of how the new law will affect disabled employees; generally, most of us are ...
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  • Federal Disability Retirement: Medical Evidence

    Often we see letters from OPM denying an employee’s request for disability retirement based on the fact that there is no evidence that the disability resulted in any performance, conduct or attendance deficiencies. Usually, OPM’s analysis stops there. However, this is not the only element that OPM must consider. When there is no performance. conduct or attendance deficiency, the relevant question ...
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  • MSPB: Full Board reverses removal of Dept. of Veterans Affairs employee

    In a decision issued July 3, 2008, the full Merit Systems Protection Board reversed the removal of its employee George Bruton. This case is interesting for a couple reasons – but first, the facts. (You can read the full decision by clicking on this text). 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 ...
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  • MSPB: Settlement Agreement in Constructive Retirement Case

    After a full day of hearing, and 3 months of negotiations, the Law Firm of Eric L. Pines, PLLC, secured a very favorable settlement agreement from a Federal Government Agency in a case before the MSPB. For confidentiality purposes, the name of the Agency will not be disclosed.In this case, our client claimed she was coerced into accepting early retirement under a VERA/VSIP program while suffering ...
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  • MSPB: What is the Whistleblower Protection Act?

    Over the coming weeks, we will be posting a series of articles about Whistle-blower reprisal appeals before the MSPB. Whistle-blower appeals are some of the more difficult cases to bring before an Administrative Judge of the MSPB, for many reasons. 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 ...
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  • MSPB: Medical Testimony and Evidence in a Coerced Retirement Case

    In an earlier blog post, I discussed the concept of a “coerced retirement”. You can view that post by clicking here. 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 ...
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  • MSPB and EEO: Burdens of Proof

    In the course of your Merit Systems Protection Board (MSPB) or Equal Employment Opportunity (EEO) hearing, you should be told, by the Judge, of your “burdens of proof”. This phrase is a legal term of art. If you can understand your “burden of proof”, you will really have a good advantage. You can structure your case on arguing that you met your burden of proof, or that the Agency failed to meet ...
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  • MSPB and EEO: What is a "mixed case"?

    One of the most challenging aspects of Federal employee employment law is the concept of the “mixed case”. The rules and procedures governing a “mixed case” are so complicated that this post does not seek to explain the “ins and outs” of every situation that could arise in a mixed case. This post only seeks to explain generally what a mixed case is and how a mixed case should be handled. So let’s ...
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  • MSPB: Family Medical Leave Act (FMLA) leave.

    When are you entitled to take Family and Medical Leave Act (FMLA) leave? That answer depends in large part on the particular Agency you work for. Many Agencies have internal rules and procedures implementing FMLA – while they differ slightly from Agency to Agency, they can never be more strict than the requirements that appear below. Under the Family and Medical Leave Act of 1993 (FMLA), most ...
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  • Federal Employee EEOC: Discussion of the Burdens of Proof in a Federal Employee EEO complaint.

    In any EEO case, the Federal employee will be required to prove their claim of discrimination. Understanding what they must prove can often be difficult and confusing. Generally speaking, the Judge will follow the McDonnell-Douglas test in determining whether or not the claimant has met their burden of proof. This test is named for the famous US Supreme Court decision that laid out the test. ...
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