As Politico and other media outlets reported today, things are not getting any better for Internal Revenue Service (IRS) employees and officials appearing before the House Oversight and Government Reform Committee.  See e.g., Lauren French, Darrell Issa: IRS was ‘Maliciously Self-indulgent,’ POLITICO (Jun. 7, 2013).  To that end, federal employees need to be particularly mindful of their constitutional rights incidental to any congressional or agency investigation.  See Elizabeth Newman, Hello Silence My Old Friend – Your Right to Remain Silent, JEFFREY LAW GROUP BLOG (Jun. 13, 2013).  Federal employees also should be concerned if this marks the end of government-sponsored training.  See Peter J. Jeffrey, Congress Proposes to Limit Federal Employee Training Opportunities, WIFLE NEWSLETTER (Sep. 2012).

If you are faced with an investigatory interview or have a question about the Government Employees Training Act (GETA), do not hesitate to contact The Jeffrey Law Group, PLLC.

Our recent blog post "LQA Error Impacts 2,000 DoD civilian employees working in Europe" discusses the indebtedness of an estimated 2,000 U.S. Department of Defense (DoD) employees who improperly received living quarter allowances (LQA).  As discussed in our blog post, each employee who receives a notice of LQA indebtedness will need to file an individual waiver request.  Unfortunately, the Court of Federal Claim's decision in Lawrence v. United States demonstrates that, if an employee's waiver request is denied, he or she will likely not be able to appeal the decision in federal court.  Lawrence v. United States, 69 Fed. Cl. 550 (Fed. Cl. 2006).

In Lawrence v. United States, a General Services Administration (GSA) employee stationed in Germany erroneously received overpayment of his living quarters allowance (LQA).  The employee requested a hearing before the General Services Administrative Board of Contract Appeals (GSBCA).  The GSBCA found that the employee owed a valid debt.  The employee then filed a request for a waiver of the debt from GSA.  His waiver request was denied. 

The employee appealed GSA's refusal to waive his debt to the United States Court of Federal Claims.  The court dismissed his claim for lack of subject matter jurisdiction and for failing to state a claim upon which relief can be granted.  The court acknowledged that the Tucker Act confers jurisdiction to the United States Court of Federal Claims to waive sovereign immunity for certain actions for monetary relief.  However, the court found that jurisdiction under the Tucker Act is not automatic because it must be based on a separate source of substantive law that creates the right to money damages.  

The employee based his primary arguments for jurisdiction on three sources of substantive law: the Due Process Clause, the Equal Protection Clause, and 5 U.S.C. § 5584, the statute that authorizes agencies to make waivers of debt.  The court rejected each of these arguments.  The court found that it is well established that the Due Process Clause and the Equal Protection Clause do not mandate payment of money by the Government.  The court also found that 5 U.S.C. § 5584 does not create a right to money damages because the statute gives agencies the discretion to determine whether to offer a waiver of a debt.  

The employee argued in the alternative that the court had jurisdiction based on breach of contract, illegal exaction, and a Fifth Amendment takings clause.  The court rejected the breach of contract argument because the employee was employed by appointment and not by contract.  The court also dismissed the illegal exaction clause argument for failure to state a proper claim.  The court held that a challenge to the manner in which the Government is collecting a debt or the Government's refusal to waive a debt is insufficient to bring an illegal exaction claim under the Tucker Act.  Lastly, the court dismissed the takings claim for failure to state a claim upon which relief can be granted.  The court held that the employee had no property interest in keeping money that was erroneously paid to him. 

The similarity between the facts of Lawrence v. United States and the situation currently faced by many DoD employees combined with the court's rejection of a wide range of arguments shows the limited recourse available to employees who are denied a debt waiver. 

If you have been notified of indebtedness related to an LOA audit, and are seeking a waiver, or if you have other questions, please contact The Jeffery Law Group, PLLC for consultation.

The movie Office Space may be 14 years old, but the relationship between the movie’s protagonist, Peter, and his boss, Bill Lumbergh, is timeless.  Lumbergh is a bully. He assigns Peter busy-work, requiring Peter to work weekends.  Lumbergh even infiltrates Peter’s dreams.  To cope, Peter attends an occupational hypnotherapy session, leaving in a dazed state.  Eventually, Peter and his coworkers concoct and execute a scheme to retaliate against Lumbergh and the company, ending in the office space burning to the ground.  

Most Federal supervisors are dedicated public servants who effectively and compassionately manage their workforce.  But there are Lumberghs too – supervisors who exacerbate or cause mental and emotional distress in the workforce. Some employees develop mental or emotional disorders that interfere with the ability to perform their work, work that could be accomplished if only the employee were reassigned to a new supervisor.  Unfortunately, the EEOC continues to find that employers do not have to provide an employee with a new supervisor as a reasonable accommodation. See Belton v. Dep’t of Veterans Affairs, EEOC OFO Petition No. 0320120052 (Apr. 2, 2013).  In Belton v. Dep’t of Veterans Affairs, the employee was diagnosed with adjustment disorder with mixed anxiety and depression (DSM IV 309.28).  His symptoms, which included pervasive depression, persistent anxious ruminations, diminished energy level, poor concentration and sleep disturbance, were triggered by interactions with his supervisor.  Belton repeatedly requested to be reassigned to a different supervisor as a reasonable medical accommodation, but the Agency denied that request.  Eventually Belton could not take it; he was unable to return to work and as a result was charged with Absence without Leave (AWOL) that ultimately led to his removal.  

After considering EEOC case law and the Rehabilitation Act, the EEOC found that Belton was not entitled to a different supervisor as a reasonable medical accommodation.  The EEOC reasoned that although the Rehabilitation Act does not prohibit the Agency from providing the employee with a new supervisor, it also does not require the Agency to provide a new supervisor. Because the Agency was not required to provide a new supervisor, the Agency did violate the Rehabilitation Act when it refused Belton’s request for a new supervisor.

Interestingly, but not particularly helpfully, the EEOC does note that the employer may require that supervisory methods be altered as a form of reasonable accommodation. The EEOC does not, however, offer examples of what may constitute a change to supervisory methods.  

If you have questions about what the EEOC considers to be a reasonable medical accommodation, we are available to help you.

Under 5 U.S.C. § 5724(i), for an employee to be eligible for relocation expenses associated with a transfer to a new duty station, the employee must agree in writing to remain in government service for twelve months after his transfer.  While the statute allows for relaxation of the one-year commitment in limited instances where facts show that an employee is separated for reasons beyond his control, an announced intention to retire does not nullify a signed permanent change of service (PCS) service agreement.  See In the Matter of Dale W. Shepherd, GSBCA 16921-RELO, 06-2 BCA ¶ 33,435.  

For example, in a recent Civilian Board of Contract Appeals (CBCA) appeal, the claimant Richard Hudon sought  to have a debt - the result of a demand for repayment of permanent change of station (PCS) transportation costs - nullified.  On May 17, 2011, Mr. Hudon received notice of PCS transfer from Seattle, WA to the DEA headquarters in Arlington, VA.  On May 23, Mr. Hudon submitted an unsigned service agreement to DEA and noted on the service agreement that he was refusing to sign because he intended to retire on June 30, 2012. On May 24, 2011, DEA notified Mr. Hudon that absent his signing the service agreement, PCS orders could not be issued. Then, on May 25, 2011, Mr. Hudon submitted retirement paperwork in Seattle which specified a retirement date of June 30, 2012.  See In the Matter of Richard M. Hudon, CBCA 3056-RELO (Apr. 25, 2013).

Thereafter, Mr. Hudon requested DEA postpone his transfer until his retirement date of June 30, 2012.  Mr. Hudon advised DEA by e-mail message, "[A]s per my earlier e-mails, I will not have any relocation expenses and will not expect authorization since I will retire this spring and prefer not to pay it back."  DEA denied his request to delay his transfer.  Further, DEA informed Mr. Hudon that, if he refused to sign the service agreement, DEA would not authorize funding for his PCS; however, DEA would still require Mr. Hudon to report, as ordered, to headquarters in Arlington, Virginia.  Id.

On July 7, 2011, Mr. Hudon signed the service agreement, which included a one-year commitment to remain with DEA. Mr. Hudon completed the relocation, submitted a claim of $1956.88 for reimbursement, and was later reimbursed.  On March 31, 2012, less than a year after the transfer, Mr. Hudon retired. DEA then sought repayment of the $1956.88 it had paid him, ultimately leading to Mr. Hudon’s appeal to the CBCA.  See id.

Finding that at the time Mr. Hudon signed the service agreement he did not intend to fulfill the one-year commitment and that he knew that a failure to meet the commitment would require him to repay any PCS funds provided, the CBCA found the debt valid and denied Mr. Hudon’s claim.  See id.  Thus, even the best laid retirement plans may run afoul of your employer’s right to assign work. 

An estimated 2,000 U.S. Department of Defense (DoD) civilian employees living in Europe are facing a serious hardship - stay in Europe working for DoD but without a living quarters allowance (LQA) - i.e., housing allowance - or find other work.  In 2011, the U.S. Office of Personnel Management (OPM) informed DoD that DoD had incorrectly interpreted LQA rules throughout the European command and had improperly authorized LQA payments to some 2,000 employees.  OPM determined that employees recruited outside the United States who had more than one employer in the overseas area prior to appointment into appropriated fund Federal civilian service did not meet the requirements for LQA.  As a result, DoD has been auditing LQA recipients in the European command, and informing those who improperly received the housing allowance of their indebtedness and notifying them that the benefit will be discontinued.  This indebtedness can be significant, amounting to $50,000 per year that the LQA was received.  DoD is allowing the command, though, to seek individual waivers for those affected by the audit.  However, the prospect of no more LQA means that many civilians in Europe will need to decide if they can afford to stay in Europe without the LQA.  Read more @ "Some DOD civilian employees to get waivers on LQA repayments" STARS AND STRIPES.

If you have been notified of indebtedness related to an LQA audit, and are seeking a waiver, or if you have other questions, please contact The Jeffrey Law Group, PLLC, for a consultation.

Although Colorado and Washington state laws allow recreational use of marijuana, marijuana is still a Schedule (Sch.) 1 controlled substance subject to federal criminal prosecution.   Because the use of marijuana is still considered a federal crime, using marijuana – even if you are a citizen of or visiting Colorado or Washington – is still a security concern.  In fact, the Department of Defense Office of Hearings and Appeals has previously denied applicants’ access to classified information, where applicants have admitted to using medically prescribed marijuana in California, a state where medical marijuana has been legalized.  See ISCR Case No. 10-08217 (Oct. 24, 2011); ISCR Case No. 08-08257 (Sept. 10, 2009).  

Now a divided Colorado Court of Appeals panel has weighed in as to whether off-duty marijuana use that is legal under state law is protected by Colorado's Lawful Off-Duty Activities Statute (prohibiting employers from firing private sector employees for doing legal things off the clock).  In a 2-1 decision, the panel upheld the firing of a quadriplegic man for off-the-job medical-marijuana use, concluding that, because marijuana is illegal under federal law, employees have no protection to use it anytime.  Read more: @denverpost.com.

Yesterday, April 24, 2013, the DC Bar issued an ethics opinion addressing whether a furloughed government agency attorney pursuing her own furlough complaint against the agency may also defend the agency from other furlough-related complaints.  Finding that under the D.C. Rules of Professional Conduct a conflict of interest plainly exists in this situation, DC Bar Ethics Opinion 365 goes onto address if this individual interest conflict could be waived under D.C. R. Pro. Conduct 1.7(b)(4).  Read more at: Ethics Opinion No. 365 - Conflict of Interest Analysis for Government Agency Lawyer Defending Agency from Furlough-Related Complaints While Pursuing Her Own Furlough-Related Employment Complaint.

The consistency of a penalty with those imposed on other employees for the same or similar offenses is one factor the U.S. Merit Systems Protection Board (MSPB) will consider in determining whether the penalty is reasonable. See Yeager v. General Services Administration, 39 M.S.P.R. 147, 151 (1988); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981).  To establish disparate penalties, the appellant must show that the charges and the circumstances surrounding the charged behavior are substantially similar to those in his comparator's case. Archuleta v. Department of the Air Force, 16 M.S.P.R. 404, 407 (1983).  If an appellant shows that the charges and circumstances surrounding the charged behavior of another employee are substantially similar, then the agency must prove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld. Villada v. U.S. Postal Service, 115 M.S.P.R. 268, ¶ 10 (2010); Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 6 (2010).

In a recent MSPB removal case, the appellant introduced evidence regarding the agency's treatment of a comparator into the record. Nevertheless, the administrative judge did not specifically address the issue in the initial decision upholding the appellant’s removal.  Finding that the record showed a substantial similarity between the appellant's charged behavior and the comparator's charged behavior but failed to address whether the agency met its burden to show a legitimate reason for the difference in treatment, the MSPB remanded the appeal for the administrative judge to reconsider the reasonableness of the penalty in light of the appellant's claim of disparate penalties.  See Kenneth G. Voss v. United States Postal Service, 113 LRP 14124, (U.S. Merit Systems Protection Board April 3, 2013).  Thus, if an appellant can demonstrate that the charges and circumstances surrounding the charged behavior of another employee are substantially similar, then the agency must prove by a preponderance of the evidence a legitimate reason for any difference in the penalty.

Today, Tuesday, March 26, 2013, the U.S. Supreme Court will hear oral arguments in Hollingsworth v. Perry, a challenge to California’s voter-approved ban of same-sex unions in 2008, i.e., Proposition 8, which amended the California’s state constitution to only recognize marriages between a man and a woman.  On Wednesday, March 27, 2013, the U.S. Supreme Court will hear oral arguments in United States v. Windsor, a challenge to the 1996 Defense of Marriage Act, which bars married gay and lesbian couples from receiving federal marriage benefits such as spousal disability, Social Security and family medical leave.

As we previously blogged on January 8, 2013, the Defense of Marriage Act (DOMA) still bars same-sex spouses of federal employees from receiving spousal benefits.  See Defense of Marriage Act (DOMA) Remains Bar to Benefits for Same-Sex Spouses of Federal Employees (Jan. 8, 2013).  For example, because DOMA defines the term “marriage” as found in Federal benefits statutes to mean “a legal union between one man and one woman as husband and wife” and the term “spouse” to mean “a person of the opposite sex who is a husband or a wife,” whose benefits of federal employment that are limited to spouses, the U.S. Office of Personnel Management has determined that DOMA thus prohibits coverage of same-sex domestic partners, even if legally married under state law.   Further, because the individuals for whom a federal employee can provide care under The Family and Medical Leave Act (FMLA) are specified in statute, a federal employee may NOT take FMLA to care for a same-sex domestic partner.  Specifically, FMLA leave may only be used to care for spouses, sons and daughters under 18 or over 18 but incapable of self care because of a mental or physical disability, and parents.  Thus, the DOMA definition of spouse precludes the extension of FMLA leave benefits to same-sex spouses.  However, all this may change depending upon the U.S. Supreme Court’s ruling in United States v. Windsor.

Rather than profiteer^* from the financial pain and uncertainty that Federal employees face from impending furloughs at many agencies, The Jeffrey Law Group, PLLC, offers the following sequestration survival tips:  

Have a Financial Plan

Do not let the financial consequences of a sequestration-imposed furlough jeopardize your eligibility for a security clearance.  Failure or inability to live within one’s means, satisfy debts and meet financial obligations may result in the denial or revocation of a security clearance.  See Adjudicative Guidelines For Determining Eligibility for Access To Classified Information, Guideline F: Financial Considerations.  However, conditions that could mitigate that security concern include, but are not limited to:

• the financial concern occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;
• the conditions that resulted in the financial problem were largely beyond the person's control and the individual acted responsibly under the circumstances; or
• the individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.

To that end, have a a financial plan in place to address your pay reduction as a result of a furlough,  work with your creditors rather than avoid them, and demonstrate that you acted responsibly under the circumstances, to protect your continued eligibility for a security clearance.

Seek Agency Approval Before Obtaining Outside Employment

Given the potential loss of income from a furlough, you may be tempted to find outside part-time employment.  However, many agencies either prohibit or require you to obtain approval before engaging in outside employment.  Further, the standards of ethical conduct for employees of the executive branch prohibit outside employment that conflicts with the employee’s official duties.  See 5 C.F.R. Subpart H.  Play it safe and confirm that such outside employment will not later result in misconduct or a potential ethics violation.

Annually Audit Your Official Personnel Folder (OPF)

Any furlough may potentially effect your service computation date, as well as your pay and leave earnings.  Under the Privacy Act of 1974, you have the right to access and request amendment of your OPF.  See 5 U.S.C. 522a.  Do not trust your agency just to get right.  Take ownership of your OPF and address any mistakes in your OPF that could lead to miscalculations in your retirement benefits and leave earning.

^*See Ben Fischer, Sequester: Federal employees lose, lawyers gain (Feb. 27, 2013), WASHINGTON BUSINESS JOURNAL.