Lawyers.com Blog

FERS & CSRS disability retirement: When & how to act

nospam@example.com (Robert R. McGill) — Tue, 19 Aug 2008 20:19:54 -0400

When people call me to ask if they need legal representation in filing for disability retirement benefits under FERS or CSRS, I try and provide as "objective" an opinion on the matter as possible. I represent hundreds of people in filing for, and obtaining, disability retirement benefits; it is my specialty, and it is how I make a living. At the same time, however, I believe that I can be completely honest in providing guidance as to whether an individual should obtain legal representation, or needs to obtain representation. For instance, for individuals who have already sent in their disability retirement packets to OPM (via the Agency for those still on the rolls; directly to Boyers, PA for those who have been separated from service for 31 days or more), I normally advise the applicant to wait -- wait until a decision has been rendered, and hopefully the individual will not have to expend the funds for attorneys fees, and an approval will be in the mail. On the other hand, every now and then, an applicant who is waiting for a decision from the Office of Personnel Management, will describe the content and substantive materials comprising the disability retirement packet, and certain statements -- during a telephone consultation with me -- concerning what is stated in the applicant's Statement of Disability, will give rise to concern, and in those instances, it may be wise to either withdraw the application, or immediately take steps to supplement the disability retirement packet. Each FERS or CSRS disability retirement packet is unique, because each individual & individual's medical condition is unique. That's what makes the practice of law in the field of representing Federal and Postal disability retirement applicants so interesting, and so professionally satisfying.

Sincerely, Robert R. McGill, Esquire

Iowa OWI Law: Use of the PBT in Court

nospam@example.com (Mark Thompson) — Mon, 18 Aug 2008 14:20:09 -0400

When a subject is questioned regarding an OWI, he is often offered a preliminary breath test (PBT) by the officer. Based in part on the results of this test, the officer will make his decision to whether charge the subject with OWI.

As mentioned in other posts, the PBT cannot be used at trial for evidence of intoxication. But what about when the results are favorable, and what happens when the information comes into trial “on accident?”

The basis for excluding the PBT from trial is based on statute. Iowa Code §321J.5 provides in part,

“The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shall not be used in any court action except to provide that a chemical test was properly requested pursuant to this chapter.”

To gain further understanding of the specifics of this law we must look to the caselaw. State v. Massick, 511 N.W.2d 384, 388 (Iowa 1994) solidifies the fact that the results are not admissible. State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987) holds that it is reversible error for the officer to testify to the results while on the stand. However, evidence that a defendant submitted to the test is admissible, so long as no reference is made to the results, as outlined in Gavlock v. Coleman, 493 N.W.2d 94, 96 (Iowa App. 1992).

Now, what happens when the defendant agrees to give up his right to keep this information out of trial, and instead wishes to enter the evidence to prove his innocence? Well, the caselaw proves that the results cannot be used for any purpose. In State v. Iowa Dist. Court for Johnson County, 630 N.W.2d 838 (Iowa 2001), Iowa City’s hometown court was overruled when the judge considered the results of the PBT when granting a deferred judgment. The Iowa Supreme Court stated, “It is apparent here that the district court was partialy persuaded by the lower PBT to grant a deferred judgment…clearly this decision is contrary to section 321J.5.”

Therefore, do not rely on the results of the PBT to haunt you or save you in court. Its only purpose is to help the officer determine if an arrest needs to be made. For more information on Iowa OWI and Criminal law, visit www.thompsonjustice.com.

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Employee Rights Laws

nospam@example.com (Jonathan I. Nirenberg) — Mon, 18 Aug 2008 12:43:08 -0400

Part 1: Overview of Federal Anti-Discrimination Employment Laws

In most states, including New York and New Jersey, unless you have a written employment contract, are a member of a labor union, or are a civil service employee, you are probably an employee at will. Employment at will is the general principal that your company can fire you for any reason, or even for no reason at all. It also means you can quit your job for any reason.

Fortunately, federal, state, and local laws create many exceptions to employment at will that give employees significant protection from an unfair or arbitrary termination. This, the first part of a four part series, discusses some of the most important federal anti-discrimination laws. The second part (release schedule: August 24, 2008), describes many other important federal “wrongful termination” laws. Part three (release schedule: August 31, 2008), addresses some of the most important exceptions to employment at will under New Jersey law. Part four reviews employee rights laws under New York State and New York City law (release schedule: September 6, 2008).

Federal Anti-Discrimination Employment Laws

The following is an overview of some of the most important federal anti-discrimination laws. This is not intended to be a comprehensive list of all federal laws prohibiting discrimination in employment. It is also important to understand that not every federal employment law applies to every employee. If you believe your employment law rights have been violated, you should contact a knowledgeable, dedicated and experienced employment lawyer.

Age Discrimination in Employment Act of 1967 (ADEA)

Protects employees who are at least 40 years old from age discrimination.
Prohibits employers from harassing employees who are 40 years old or older because of their age.
Makes it unlawful to retaliate against individuals who object to age discrimination.

Americans with Disabilities Act of 1990 (ADA)

Prohibits employers from discriminating against employees who are disabled, perceived to be disabled, or have a record of a disability.
Requires employers to provide reasonable accommodations to allow disabled employees to perform the essential functions of their jobs.
Protects individuals who complain about disability discrimination or who request a reasonable accommodation for a disability, by prohibiting retaliation.

Equal Pay Act of 1963 (EPA)

Prohibits employers from discriminating between men and women in terms of salary and other wages if they hold the same job under similar working conditions.

False Claims Act of 1986 (FCA)

Allows individuals to file whistleblower actions (called qui tam actions) against individuals who defrauded the federal government, including health care fraud, fraud by defense contractors, and fraud in other federal spending programs.
Permits some whistleblowers who bring successful claims under the False Claims Act to receive a portion of any damages recovered.

Genetic Information Non-Discrimination Act of 2008 (GINA)

Prohibits employment discrimination on the basis of genetic information. Additional information about GINA is available here.

Occupational Safety & Health Act of 1970 (OSHA)

Requires employers to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
Makes it unlawful for employers to fire or otherwise discriminate against employees who file complaints, testify, or exercise other right under OSHA.

Older Workers Benefit Protection Act of 1990 (OWBPA)

Prohibits companies from denying employee benefits to older employees because of their age, with limited exceptions.
Adds numerous requirements before a settlement of an age discrimination claim to be enforceable under the ADEA, such as requirements that the employee is:

           1. Provided the ages of employees who were laid off and retained
                in a reduction in force;
           2. Provided at least 21 days to review the agreement
                (45 days in the case of a mass layoff);
           3. Given at least 7 days to revoke the agreement after signing it; and
           4. Advised to consult a lawyer before accepting a severance offer
                that contains a waiver of rights.

Pregnancy Discrimination Act (PDA)

Prohibits discrimination on the basis of pregnancy, childbirth and related medical conditions, as forms of unlawful sex discrimination. The Third Circuit has recognized that this includes prohibiting discrimination against a woman because she had an abortion.

Section 1981 of the Civil Rights Act of 1866 (Section 1981)

Prohibits discrimination due to race or ethnicity in the making, performance, modification, and termination of contacts, including employment contracts, or with respect to the benefits, privileges, terms, and condition of a contractual relationship.

Title VII of the Civil Rights Act of 1964 (Title VII)

Prohibits discrimination on the basis of race, sex (gender) color, national origin, and religion.
Makes it illegal for an employer to harass an employee due to race, sex (gender) color, national origin, or religion, including prohibiting sexual harassment.
Protects individuals who make complaints of discrimination or harassment based on race, sex (gender) color, national origin, and religion, by prohibiting retaliation.

Uniformed Service Employment and Reemployment Rights Act of 1994 (URESSA)

Prohibits employers from discriminating against an employee because of his or her service in the Armed Forces Reserve, the National Guard, or other uniformed services.
Entitles veterans, reservists, National Guard members, and other members of the uniformed services to return to their jobs in the private sector after an absence for military service or training.

Worker Adjustment and Retraining Notification Act of 1994 (WARN Act)

Requires most companies with 100 or more employees to provide at least 60 days advance notice of a mass layoff or plant closing.

The attorneys of the employment and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New York and New Jersey whose federal employment discrimination law rights have been violated.

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Planning to Take the Citizenship (Naturalization) Exam?

nospam@example.com (Laura Kalish) — Fri, 15 Aug 2008 17:03:05 -0400

It is easy to feel intimidated or overwhelmed by the idea of taking the naturalization test, especially if you have not taken a test in a long time. Here are the most important things to remember:

1. Make sure your immigration filing is properly prepared. From the very beginning, be sure to be complete and truthful with your application and paperwork. Get whatever help you need in completing and filing your application. Be sure that the immigration service has your proper address at all times. These early steps will prevent anxiety later on.

If you have a disability, you may be entitled to special accommodation at the test. If so, accept the help. Don't try to be brave and "tough it out".

If your primary language is one other than English and you are entitled to an exemption to take the test in your primary language, don’t be afraid to do so. Be sure that you think about these things in advance and file your request in time.

2. Be aware of how you study best and take the time to do it. If you learn best by reading and writing things yourself, do that. If you learn best by having someone ask you questions out loud, do that. Many communities have classes or workshops at libraries and community centers for test preparation. If you are the kind of person who learns best in a group, find one. Use a good study guide to help you prepare. Also, look at the study materials provided free online on www.uscis.gov. Be sure to download and use the ones that will help you.

3. Prepare yourself physically and emotionally. Be sure that you get proper rest and nutrition for at least a few days before the test. Try to avoid last minute "cramming" or staying up all night. Pace yourself with your studying. Get yourself mentally prepared to have a great result. Wear clothing that is comfortable, but still makes you feel good. You should go into the test rested, comfortable and confident!

Laura Kalish is an immigration attorney and a partner in the Kalish Law Firm in The Woodlands, Texas. She can be reached at kalishlawlaura@aol.com. The firm’s website can be found at www.kalishlawtexas.com.

Kalish Law Office

25907 Oak Ridge Dr.
The Woodlands, Texas 77380

281-363-3700

www.kalishlawtexas.com

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FERS & CSRS disability retirement: Further comment on Vanieken-Ryals

nospam@example.com (Robert R. McGill) — Thu, 14 Aug 2008 21:07:57 -0400

Vanieken-Ryals v. OPM, decided by the U.S. Court of Appeals for the Federal Circuit on November 26, 2007, has an interesting statement from the deciding Judge, which can be used as "firepower" for anyone who is attempting to obtain Federal Disability Retirement benefits (note of caution: for lay non-attorneys, be careful in how you use it in trying to convince a lay, non-attorney OPM representative): "In addition, neither the MSPB nor OPM discussed the content of Dr. [ ] or [ ] evidence in any meaningful way, which further demonstrates that it was not properly considered. OPM, for example, resorted to a laundry list of "objective" tests and documents that the medical evidence did not contain rather than examining the evidence and evaluating what it did contain." Interpretation: If OPM's argument is to focus upon what is missing, they have violated their primary Agency/administrative responsibility -- that of evaluating, in some "meaningful" manner, the medical evidence which was in fact submitted. This can be used effectively for the Reconsideration Stage by diplomatically pointing out the error of OPM, and citing Vanieken-Ryals, and highlighting the relevant portions of the medical documentation previously submitted.

Sincerely, Robert R. McGill, Esquire

Can You Sue Your Employer in Virginia for a Work Place Accident?

nospam@example.com (Gerald G. Lutkenhaus) — Thu, 14 Aug 2008 09:51:08 -0400

The Virginia Workers' Compensation Law was adopted in 1918. The law provides compensation for lost wages and medical benefits. The common law right to sue the employer for the work place injuries in Virginia was abolished. However, the employer lost the right to defend the accident on the basis of the worker’s contributory negligence or assumption of risk. Also, the worker did not have to prove the employer’s negligence caused his injury. As noted by the Virginia Supreme Court in Feitig v. Chalkey, 185 Va. 96 (1946), the principles of the Virginia Workers’ Compensation Law have been accepted by practically all of the States in the United States.

The principle restriction on recovery in a workers’ compensation case is that you cannot recover "pain and suffering" as you can in a personal injury case. The principle benefit may be a speedier but smaller recovery without resorting to costly litigation.

Of course, if the injury results from the actions of a third party, the worker can file a personal injury action against the third party provided the third party is not a co-employee. The usual example of this is if the worker is driving a company vehicle which is negligently struck by a driver of another vehicle. In this situation, the worker would have a workers compensation claim against his employer and a personal injury claim against the driver of the other vehicle. Also, if the injury was caused by defective equipment, then the worker could sue the manufacturer of the machine and workers compensation would not be a bar to this kind of product liability lawsuit.

In my workers' compensation practice, potential clients often ask "Why can’t I sue my employer for my injury?" The only response I can make is that the State of Virginia in 1918 like the other States in the United States at about this time decided that industry and labor were better served if employers were required to provide workers’ compensation insurance as a cost of doing business rather than the worker having to rely on the uncertainty of personal injury lawsuits. Thus, in almost all Workers Compensation Cases, you do not have a personal injury case as an additional remedy.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Gerald G. Lutkenhaus has been representing Workers Compensation Claimants in the Central Virginia Area for over 30 years. He received Martindale-Hubbell's highest rating in 2003, for more information check our website at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com.

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Missing a Step: Is this a Workers Compensation Accident in Virginia?

nospam@example.com (Gerald G. Lutkenhaus) — Thu, 14 Aug 2008 09:41:58 -0400

You are rushing at the work place. You go down the stairs and you miss a step or you stumble and down you go. This can result in a serious injury depending upon the severity of the fall. Since this happened at the work place and since you were on company business, this should be compensable under the workers' compensation law. However, in Virginia you have a problem.

It is not enough to show in Virginia that you were at the work place when the accident occurred. Virginia has rejected the "positional risk" test in favor of the "actual risk" test. What this means is that something must have caused the fall. That something must be a "risk" of the employment. Thus, if there was a slippery substance on the floor, or if the steps were slippery, or if the rug on the steps was defective, or if the stairway did not have proper lights, or if the steps themselves were narrower than normal, or higher than normal, then the injured worker may be able to establish the necessary "actual risk" associated with the employment. Also, if the employee was carrying something that made the descent of the steps riskier than normal that could provide the "actual risk" to convert the claim into a compensable accident. However, if the worker simply misses the step on an ordinary journey down or up the stairs then the claim will be denied because no "actual risk" has been shown.

In summary, the injured worker who has fallen on a stairs or even a ladder at work is well advised to discuss this incident as soon as possible with an experienced workers compensation attorney.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this article should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Gerald G. Lutkenhaus--has been doing workers compensation in Virginia for over 30 years. In the July 1999 issue of Richmond Magazine he was rated one of the Best Attorneys for Workers Compensation in Central Virginia. In 2003 he was giving the rating of AV by Martindale Hubbell.

You can get more information from our websites at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com

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Social Security Processing Time in Tampa

nospam@example.com (John F. Sharpless) — Tue, 12 Aug 2008 12:07:39 -0400

According to the Social Security Administration’s National Ranking Report for the month ending June of 2008, the Tampa Office of Disability Adjudication and Review (ODAR) has a processing time of 648 days. This means that from the date a Request for Hearing with an Administrative Law Judge is filed the average processing time is just short of 22 months. The Tampa ODAR ranks 122nd out of 147 hearing offices nationwide.

Does every claimant have to wait? One of the most positive things an advocate can do is to collect and develop the evidence to establish that the claim can be awarded on the record without a hearing. The Administration has an interest in awarding and disposing of meritorious claims so that their limited resources and overworked judges can focus on adjudicating claims that are not as clear cut. For information about my office and more on our philosophy please see our website at www.tampa-ssd.com.

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FERS & CSRS disability retirement: What it means to have the "burden of proof"

nospam@example.com (Robert R. McGill) — Mon, 11 Aug 2008 21:02:56 -0400

Remember that the applicant who is requesting disability retirement benefits from the Office of Personnel Management always has the burden of proving, by a preponderance of the evidence, that he or she is entitled and eligible for disability retirement benefits. Even if the Agency proposes and effectuates a removal based upon one's medical inability to perform the essential elements of one's job (thereby invoking the "Bruner Presumption"); nevertheless, the burden of persuasion always remains with the applicant. Never assume anything; yes, the Bruner Presumption is nice to have, but don't ever rely upon it to have your disability retirement benefits handed to you, because it won't be. The Bruner Presumption "can be rebutted if adequate evidence is identified in the record to establish that the appellant actually is not entitled to disability retirement; even with the rebuttable presumption, the appellant retains the burden of persuasion at all times to establish his entitlement to disability retirement" (See Morton v. Office of Personnel Management, 88 M.S.P.R. 691 (2001). Remember: you always have the burden to prove your entitlement to disability retirement benefits; you must prove it; you must work tirelessly to show it.

Sincerely, Robert R. McGill, Esquire

The Right to Counsel in Iowa

nospam@example.com (Mark Thompson) — Fri, 08 Aug 2008 11:08:09 -0400

The United States Constitution guarantees the right to counsel for the accused. The State of Iowa has taken this right and written it into our state statutes. Iowa Code §804.20 states:

Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay. A violation of this section shall constitute a simple misdemeanor.

Not only does our state code require the right to counsel be honored, but they have made it a crime for an officer to deny this right. But where does this law stand in practice? And, more specifically, what is the impact of this law on the ‘implied consent’ law that is invoked in OWI cases?

A person arrested for OWI has a limited right to contact an attorney under this code section. A person cannot, however, use this section to interfere with the two hour time limit for blood alcohol testing as required under Iowa Code §321J.6(2). This means that the right to consult with counsel is limited to circumstances that do not materially interfere with the time limit.

Generally speaking, the right to counsel is satisfied by allowing the accused to make a telephone call. There is no duty on the officer to inform the accused of their right to consult an attorney, and any request must be made in good faith.

Therefore, much of the freedom to consult with an attorney is at the discretion of the officer making the arrest. After reviewing scores of OWI arrest videos, I have seen officers exercise a wide discretion on this question. Many times, the officer will allow the accused to make many phone calls, now that cell phones are generally available and present. I have seen officers allow five or six separate attempts to contact an attorney, and time frames from a few minutes to fifteen or more.

An officer will likely allow the accused enough time to reasonably contact an attorney, but the officer will end these attempts as soon as he sees that no genuine effort is being made. The accused can contact a family member for help in finding an attorney, but as soon as the conversation goes from ’searching for an attorney’ to ‘what’s for supper, honey?’ the officer may end the phone call immediately.

Another important point to stress is that there is no right in Iowa for these phone communications to be private. This may contrast with the language of the statute above, but our Supreme Court has stated “the telephone calls which section 804.20 assures to persons in custody are not intended to be confidential as is shown by the provision that they are to be made in the presence of the custodian. They are for the purpose of enabling the person to arrange for a legal consultation and assistance.” State v. Craney, 347, N.W.2d 668, 677 (Iowa 1984).

To summarize, if a person is accused of an OWI offense and taken down to the police station, he will be given the right to call an attorney and speak with that attorney with the officer listening. As soon as the attempts to reach an attorney become futile, non-genuine, or threaten the two hour time limit, the officer will continue with the implied consent proceedings and demand that the accused either takes or refuses the Datamaster/Breathalyzer test.

This article was prepared by Attorney Mark Thompson and law student Cody Farrens. Mark's website is www.thompsonjustice.com.

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Why You Might Need an Employment Lawyer

nospam@example.com (Jonathan I. Nirenberg) — Wed, 06 Aug 2008 21:57:03 -0400

Reasons Why it Might Be a Good Idea to Consult with an Experienced Law Attorney.

Many people realize they might need an employment law attorney if they have been fired, to find out if they have a “wrongful discharge” case or another legal claim. While that is certainly a good reason to talk to an employment lawyer, there are many other reasons why you might want to speak with an attorney who is experienced at handling employment law matters. Below are examples of some of the things an employment lawyer may be able to help you with before you accept a job offer, during the course your employment, and after you have been fired or laid off:

Before You Accept a Job Offer

It is often important to understand your legal rights before you accept a job offer, especially if you have been offered a written employment contract. For example, if you are considering accepting a job, it might be a good idea to consult with an employment lawyer to:

Review your employment contract before you accept the job.
Help you understand the potential ramifications of signing a non-compete agreement or an employment contract that contains a non-solicitation clause.
Discuss the advantages and disadvantages of signing an employment agreement that requires you to arbitrate future employment disputes.
Help you understand which preemployment promises may be enforceable, and which ones might be difficult to enforce.
Explore whether the reason you were not offered a job was illegal, such as if the decision was a form of unlawful discrimination

During the Course of Your Employment

Employment lawyers can also help individuals with problems at their current jobs. You may want to meet with an experienced employment lawyer about your current employment situation if you want an expert to:

Help you determine whether the harassment you are experiencing is legally actionable.
Discuss the best way to deals with a supervisor or coworker who is harassing you.
Assist you in understanding your rights and obligations under the Family & Medical Leave Act, including when you are entitled to take a family or medical leave; how to request a family or medical leave, and your legal rights once you have requested a family or medical leave.
Help you determine the best approach to request that your employer provide you with a reasonable accommodation for a disability.
Explore whether you have a legal claim based on your employers decision to demote you, pass you up for a promotion, or another adverse employment action against you for a legally prohibited reason.
Discuss what to do if your employer has refused to provide you with an accommodation for a disability that you need to perform your job.
Find out if your employer is violating the law by not properly paying for your overtime hours, or by not paying you at least minimum wage.

After You Have Been Fired or Laid Off

Employment lawyers can also be helpful after you have been fired, laid off, or if you have been forced to resign. If you have recently lost your job, you might want to speak to an employment attorney to:

Learn if you might have been terminated for a discriminatory reason, such as if you were fired because of your age, gender, race, color, national origin, nationality, ancestry, pregnancy, mental or physical disability, marital status, domestic partnership status, creed, religion, sexual orientation, atypical hereditary cellular or blood trait, genetic information, or military service.
Explore whether the decision to fire you was illegal retaliation, such as if you were fired or laid off because you objected to or refused to participate in an activity that you reasonably believed was illegal, fraudulent, criminal, or unethical; because you complained about a violation of wage and hour laws; or because you took a family or medical leave; or because you requested a reasonable accommodation for a disability.
Help you figure out if you have a “wrongful termination” case.
Discuss whether it may be possible to enhance the severance package you have been offered.
Figure out if it may be possible to remove certain undesirable terms from a proposed severance agreement.

Employment laws and the rights of employees vary from state-to-state. This article is primarily based on New Jersey employment law. If you work outside of New Jersey, some of the legal rights referenced in this article may not apply to you.

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FERS & CSRS Disability Retirement: The "nexus" between the Reconsideration Stage and the Merit Systems Protection Board

nospam@example.com (Robert R. McGill) — Wed, 06 Aug 2008 18:46:47 -0400

It is an accepted fact that there is a "psychological" aspect to almost everything in life, and this is no less true in the field of disability retirement law. The "psychological" aspect is the nexus, or bridge, from the Reconsideration Stage to the Merit Systems Protection Board. From OPM's viewpoint, this is the last chance to make a decision on a case, before it is taken out of the hands -- and therefore "control" -- of the Office of Personnel Management. Thus, OPM wants to be able to "justify" that its decision was reasonable, and legally-based and legally sufficient to withstand the scrutiny of an Administrative Judge. From the Applicant's viewpoint, it is a chance to show that OPM was unreasonable for not approving the case. While it is true that all cases which come before the MSPB are heard de novo (meaning, anew, without regard to prior decisions by OPM), OPM nevertheless never wants to be viewed as ignoring the law and appearing unreasonable, and the Applicant wants OPM to appear unreasonable in the face of the medical evidence already provided. This is the psychology behind trying to convince OPM to approve a case at the Reconsideration Stage. Thus, at the Reconsideration Stage, it is important to cite applicable law to OPM, to corner them into a position of appearing unreasonable if the disability retirement application is denied. On the other hand, the reasonings and underpinning of foundational bases provided in Reconsideration Decisions are often far more superior and accurate than those handed down at the Initial Stage. In any event, always remember that there is a "psychological" aspect to everything, and it is the duty of an attorney to identify it, use it to the best advantage possible, and cite the appropriate law.

Sincerely, Robert R. McGill, Esquire

Reopening of Divorce Agreement Terms Permitted

nospam@example.com (Richard S. Diamond) — Wed, 06 Aug 2008 16:34:28 -0400

In Hogbin v. Hogbin-DeLaurentis, the Appellate Court in NJ permitted the wife the opportunity to present proofs ( to the court below on remand) as to whether the parties settlement agreement was oppressive and manifestly unfair and should be set aside, based on her testimony as to her husband's physical & emotional abuse and the report of her expert as to her mental state at the time the agreement was entered.

Translated to english....... where one side clearly pressures the other side into accepting an unfair settlement agreement or where one side is clearly in an emotionally unstable state of mind, the agreement may ultimately be thrown out by the court.

Subprime Mortgages and Theories of Liability--Deja Vu? (Part Three)

nospam@example.com (Michael E. Clark) — Wed, 06 Aug 2008 11:47:10 -0400

Background

Part One of this series focused on certain features of the subprime mortgages now defaulting in huge numbers and noted how these features also were common in many improper transactions that led to the Savings and Loan Crisis of the early 1990s, as well as in the more recent corporate governance scandals associated with enormous investor losses typified by Enron and WorldCom.

Part Two examined some statistics and problems with liability theories that plaintiffs are relying upon to establish the liability of defendants in various securities class actions for damages claimed to have been sustained in some way from with the implosion of the subprime mortgage market.

Part Three addresses the heightened pleading requirements for falsity and scienter imposed by the Private Securities Litigation Reform Act of 1995 (PLSRA) and the impact of caselaw interpreting these provisions that make it very hard for class action plaintiffs to successfully establish secondary liability of defendants.

Difficulties for Private Plaintiffs Seeking to Prove Securities Fraud Liability and Damages Related to the Subprime Mortgage Market's Collapse

The PSLRA imposes two key heightened pleading standards upon plaintiffs pursing securities fraud class actions. First, the complaint must set forth ‘‘each statement alleged to have been misleading, the . . . reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, thecomplaint shall state with particularity all facts on which that belief is formed.’’ 15 U.S.C. §78u-4(b)(1). Second, plaintiffs must state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind . . . with respect to each act or omission alleged to be a violation of the securities laws. 15 U.S.C. §78u-4(b)(2).

A district judge recently explained in Atlas v. Accredited Home Lenders Holding Co., 2008 WL 80949 (S.D. Cal. Jan. 4, 2008)(unpublished) why she granted and denied in part defendants' motions to dismiss the shareholders' securities fraud complaint against the seller of sub-prime mortgages, its subsidiary, and various officers claiming that the defendants concealed the seller's true financial condition and made materially false and misleading statements about its operations and income to artificially inflated the price of the seller’s stock during the class period:

The PSLRA dictates that a securities complaint must "specify each statement alleged to have been misleading, [and] the . . . reasons why the statement is misleading.” 15 U.S.C. § 78u-4(b)(1). The Ninth Circuit traditionally analyzes the overlapping requirements of falsity and scienter at the same time. Ronconi v. Larkin, 253 F.3d 423, 429 (9^th Cir. 2001)(pleading requirements of PSLRA may be collapsed into single inquiry because analysis of both factors involves same facts); see No. 84 Employer-Teamster Joint Council Pension Trust Fund v. America West Holding Corp., 320 F.3d 920, 932 (9^th Cir.2003). A securities fraud claim must “state with particularity facts giving rise to a strong inference” that each defendant acted with the intent to defraud or with deliberate recklessness. 15 U.S.C. § 78u-4(b)(2).

Atlas, 2008 WL 80949 at *7.

If a complaint doesn't meet these requirements, dismissal is required (upon motion by defendant). 15 U.S.C. §78u-4(b)(3)(A). See also, Edison Fund v. Cogent Inv. Strategies Fund, Ltd., 551 F. Supp. 2d 210, 216 (S.D.N.Y. 2008), in which a district judge similarly ruled on the securities fraud allegations of the plaintiffs, limited liability investment companies organized and operating in the Grand Cayman Islands, who asserted they could not redeem their substantial portfolio investments ($77,750,000) after the market for portfolios of subprime auto finance loans deteriorated. The judge observed that sufficient warnings were provided under the bespeaks caution doctrine about the associated investment risks noting that:

The Non-Leveraged offering materials made no blanket guarantees about the liquidity of the investments or the ease of redemption. In fact, the Non-Leveraged COM warned investors that the Funds were appropriate only for sophisticated investors and carried risks-in particular, risks of the illiquidity of the investments. For example, the offering materials for the Non-Leveraged Fund state that “[g]iven the relatively illiquid nature of the Loans, distributions will be made subject to sales of Loans and available cash in the Fund.” . . . They continue by warning: [T]here is no public market for such loans and sales of loan portfolios are private transactions arranged on a case-by-case basis. Accordingly, redemption of Interests by Members will be subject to the Fund’s available cash flow from principal and interest payments and the ability, with the assistance of Centrix Financial, to sell the Loans to third parties.

Edison Fund v. Cogent Inv. Strategies Fund, Ltd., 551 F. Supp. 2d at 223-224.

In another recent subprime mortgage case, a district judge felt it was appropriate to take judicial notice about the widespread collapse of the subprime mortgage industry as part of his analysis of why he was granting the defendant's motion to dismiss. See In re 2007 NovaStar Financial, Inc. Securities Litig., 2008 WL 2354367 at *1 (W.D. Mo. June 4, 2008). The judge also noted that while the complaint was very lengthy (over 100 pages and 200 paragraphs), it still failed to meet the PSLRA's heightened pleading requirements for fraud and scienter, since the allegations about the use of non-GAAP accounting and the company's failure to set aside appropriate reserves did not demonstrate fraud, but only management's negligence:

The Complaint also alleges various [GAAP] violations . . . by overstating gains, understating loan loss provisions and reserves, and failing “to properly disclose the effect of known trends and uncertainties in its financial statements.” . . . However, it is noteworthy that nobody—the SEC, Novastar’s auditors, or anyone else—has suggested Novastar should or must restate its financial reports. More importantly, although the allegations are couched in terms of GAAP principles, the allegations actually assert management’s failure to plan sufficiently for future events. For instance, according to Plaintiff GAAP required Novastar to make adequate provisions for delinquent loans. Novastar made provisions, but those provisions turned out to be inadequate. This does not mean the initial provisions were “false;” it just means management did not do a good job.

2008 WL 2354367 at *2-*3.

More to Come

©Michael E. Clark, Hamel Bowers & Clark LLP. Information provided in this blog does not, nor is it intended to, create an attorney-client relationship. Rather, it is offered solely for informational purposes and is not intended to constitute advertising. More information about me, my practice, background, and interests, is available from the firm website, www.lawyers.com/hamelbowers&clark, and the following sites (including links to some of my published papers and articles: www.avvo.com/attorneys/77007-tx-michael-clark-121553.html and www.superlawyers.com/texas/lawyer/Michael-E-Clark/a051f497-181f-4399-862b-cd4a7ad5c1cf.html

The pharmaceutical law treatise for which I am Editor-in-Chief was published in December 2007 by BNA and is now being supplemented for 2008. See http://storefront.bnabooks.com/epages/bnabooks.storefront/en/product/1576.

Continue reading "Subprime Mortgages and Theories of Liability--Deja Vu? (Part Three)"

METLIFE v. GLENN: THE SUPREME COURT IMPROVES THE STANDARDS FOR DECIDING DISABILITY CLAIMS UNDER EMPLOYER-SPONSORED PLANS (ERISA)

nospam@example.com (Mark P. Scherzer) — Tue, 05 Aug 2008 20:04:07 -0400

The Supreme Court’s recent decision in Metropolitan Life Insurance Company v. Glenn, 128 S. Ct. 2343 (Jun. 19, 2008) is likely to have beneficial effects on judicial review of ERISA-governed disability and other welfare benefit claims, particularly in the Second Circuit, which includes New York. The Court’s analysis allows district courts more freedom to consider the impact of an insurer’s bias and financial self-interest (conflict of interest) in denying claims. Moreover, since the presence of such a conflict can justify discovery and admission of evidence outside the so-called “administrative record,” courts should be more willing to authorize discovery where signs of bias and self-interest are present, even if no “smoking gun” is apparent. Finally – and with specific reference to disability claims – the Supreme Court has made clear that insurers and claim administrators should consider Social Security disability determinations. If a claimant has been approved for Social Security disability, it may be considered arbitrary and capricious for a private insurer to ignore that fact in its claim determination.

The New Standard of Review

A significant hurdle to claimants seeking benefits under employer-sponsored plans has long been the “arbitrary and capricious” standard of review. The Supreme Court approved the application of this standard of review in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101 (1989), holding that if the documents which establish a benefit plan grant the claim administrator “discretion” to interpret plan terms or make benefit determinations, those interpretations or decisions would not be overturned unless the decision was so wrong or unreasonable as to be arbitrary and capricious. Under this more deferential review, it is not enough for a claimant to demonstrate that the decision was against the weight of the evidence.

While recognizing the administrators’ discretion, the Supreme Court also admonished in Firestone that “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’” 489 U.S. at 115. Many federal circuit courts of appeal, guided by this admonition, adopted a “sliding scale” approach to conflict-of-interest analysis. The Second Circuit, however, established an all-or-nothing test in Sullivan v. LTV Aerospace & Defense Company, 82 F.3d 1251 (2^nd Cir. 1996). Under this test, a district court was required to adhere to the arbitrary and capricious standard of review in cases alleging conflict of interest, unless the claimant could show that the conflict actually affected the choice of a reasonable interpretation. In other words, it was not enough to simply demonstrate a structural conflict of interest, i.e., that the claim administrator was also the insurer (financially responsible party) for the plan, but instead a claimant must carry the burden of demonstrating that the administrator was “in fact influenced” by the conflict of interest. Only then would the court reduce its deference to the administrator and make its own determination of whether the benefits should be awarded (known as “de novo” review).

Thus, the Second Circuit essentially required “smoking gun” evidence of a conflict of interest. Given the improbability that a claim manager would record such a “smoking gun” in a claim file, cases satisfying the Sullivan standard have been rare. We are aware of only one such case, Schwartz v. Oxford Health Plans, 175 F. Supp. 2d 581 (S.D.N.Y., 2001), in which Oxford’s decision to change to a less generous reimbursement formula for “usual, customary and reasonable” charges was found tainted by a conflict of interest, based on the Oxford’s past coverage in full of insured’s medical care, its decision to make the change in the same year it began to experience losses, its failed efforts to induce the insured to switch to an in-network provider, and the relative weakness of Oxford’s reasoning in support of the change.

Glenn effectively overrules Sullivan’s “smoking gun” test, instead directing district courts to consider the effect of bias and financial self-interest as a factor, even when the effect of that conflict is not blatant. The Court determined that “for ERISA purposes[,] a conflict exists” when an insurer “both evaluates claims for benefits and pays benefits claims.” 138 S. Ct. at 2348-50. That conflict must always be considered as a “factor” to a greater or lesser degree depending on a variety of other factors:

[C]onflicts are but one factor among many that a reviewing judge must take into account. Benefits decisions arise in too many contexts, concern too many circumstances, and can relate in too many different ways to conflicts – which themselves vary in kind and in degree of seriousness – for us to come up with a one-size-fits-all procedural system that is likely to promote fair and accurate review….
In such instances, any one factor will act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor's inherent or case-specific importance. [A] conflict … should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration…. It should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decisionmaking irrespective of whom the inaccuracy benefits.

128 S. Ct. at 2351. Although we are unaware of a district court in the Second Circuit that has yet addressed the effect of Glenn vis a vis Sullivan’s all-or-nothing test, it seems clear that in insurer-administered benefit plans, district courts will have freer rein to consider the insurer’s conflict of interest as a “factor,” even if there is no “smoking gun” evidence of a direct link between the conflict and the particular benefit determination.

New Opportunities to Obtain and Introduce Evidence

The Court’s reasoning in Glenn should also make district courts in the Second Circuit more open to admitting evidence outside the “administrative record.” The general rule is that a district court’s review – whether under the arbitrary and capricious standard or the de novo standard – is limited to the administrative record, i.e., the claim file as organized and maintained by the claim administrator. Miller v. United Welfare Fund, 72 F.3d 1066, 1071 (2^nd Cir. 1995) (district court erred when, on arbitrary and capricious standard of review, it conducted a bench trial in which evidence outside the administrative record, including the testimony of claimant’s treating cardiologist and an affidavit from a nurse consultant, was considered); DeFelice v. Am. Int'l Life Assurance Co., 112 F.3d 61, 66-67 (2^nd Cir. 1997) (In reviewing an ERISA eligibility determination de novo, the district court is limited to a review of the evidence in the administrative record absent good cause to consider additional evidence).

The Second Circuit, in DeFelice, held that where there is “[a] demonstrated conflict of interest in the administrative reviewing body,” this may constitute “good cause” for the admission of evidence outside the administrative record. 112 F.3d at 66-67 (2^nd Cir. 1997). The court also observed that for this purpose, the conflict need not rise to the level of causing “actual prejudice,” as required by Sullivan to alter the standard of review. Nonetheless, the Second Circuit emphasized in Locher v. UNUM Life Ins. Co. of Am., 389 F.3d 288 (2^nd Cir. 2004), that a bare structural conflict (i.e., that a claim administrator occupies the dual role of claim decision-maker and claim payer) is not enough, on its own, to constitute “good cause.” Something more has been required, such as a “procedural irregularity or deficiency,” including “an insurer’s lack of ‘established criteria for determining an appeal’; an insurer’s ‘practice of destroying or discarding all records within minutes after hearing an appeal’; an insurer’s ‘failure to maintain written procedures’ for claim review; and an insurer’s failure to state its reason for denying a claim in its notices to a claimant.” Laub v. Aetna Life Ins. Co., 549 F. Supp. 2d 571 (S.D.N.Y., 2008). Thus, “good cause,” for purposes of admitting evidence beyond the administrative record, lies somewhere on the continuum between a structural conflict and a conflict manifested by evidence of direct consideration of financial or other self-interested factors. This test might be called “structural conflict plus” or, alternatively, “actual conflict lite.”

Glenn’s holding – that a structural conflict of interest is, in and of itself, a factor that must be considered in reviewing a claim determination – does not directly overrule the holdings of DeFelice and Locher. However, by placing increased weight on the structural conflict itself, Glenn should reduce the amount of additional ”good cause” a claimant needs to introduce in order to get extrinsic evidence admitted. Glenn should also provide additional momentum to the prevailing trend in the Second Circuit of recognizing that discovery is appropriate, and that a claimant seeking discovery should not be required to first overcome onerous hurdles:

However, at the discovery stage, the plaintiff need not “make a full good cause showing, but must show ‘a reasonable chance that the requested discovery will satisfy the good cause requirement.’” In Anderson v. Sotheby's Inc. Severance Plan, Magistrate Judge Douglas F. Eaton explained this less-than-good-cause requirement, stating, “If a plaintiff were forced to make a full good cause showing just to obtain discovery, then he would be faced with a vicious circle: To obtain discovery, he would need to make a showing, that in many cases, could be satisfied only with the help of discovery.” The good cause standard required to obtain evidence beyond the administrative record is therefore less stringent than when requesting that the court to consider such evidence in its final determination.

Trussel v. CIGNA Life Ins. Co., 552 F. Supp. 2d 387 (S.D.N.Y. 2008). While entitlement to discovery certainly cannot be assumed as a fait accompli by plaintiffs’ attorneys, prompt, non-abusive discovery demands will likely be upheld when a structural conflict is present, non-frivolous questions or concerns about the integrity of the decision-making process are raised, and a reasonable rationale has been articulated for the information sought. A non-exhaustive list of permissible discovery inquiries has been summarized by one court, as follows::

(1) the criteria of review by the administrator; (2) the composition of the panel and if a conflict of interest exists; (3) the medical records reviewed in determining eligibility; (4) the relationship between the plan administrator and employer; (5) the person most knowledgeable of the termination of plaintiff's benefits; (6) the factual basis for the defendant's decision regarding benefits; (7) any procedural irregularities; (8) the proper standard of review; (9) the competency of the fiduciary; (10) whether or not the fiduciary acted unreasonably; (11) the change in medical condition as a basis for denial; (12) the role of the insurer in the loss of benefits; (13) the completeness of the administrative record; (14) the competent and complete evaluation of medical records; (15) the compensation plans of the decision makers; (16) the identity of the plan's trustees; (17) who has ultimate authority to decide claim disputes under the plan; (18) consultation with medical sources; (19) the relationship between the administrator and the medical advisor; (20) inspection of the claim file; (21) the role of the fiduciary; and (22) the physician's report and testimony.

Reittinger v. Verizon Communications, 2006 U.S. Dist. LEXIS 83293, at *11, n. 2 (N.D.N.Y., Nov. 15, 2006). Discovery should be sought early and not raised as an afterthought, as courts seem disinclined to permit discovery once a summary judgment motion (or a so-called “motion for judgment on the administrative record”) has been submitted. See, e.g., Wagner v. First Unum Life Ins. Co., 100 Fed. Appx. 862 (2^nd Cir., Jun. 14, 2004) (unpublished opinion) (affirming district court’s refusal to permit discovery after granting summary judgment to the claim administrator). Nor is it likely that courts will view Glenn as authorizing open-ended discovery. Florczyk v. Metropolitan Life Ins. Co., 2008 U.S. Dist. LEXIS 54651 (N.D.N.Y., Jul. 11, 2008) (considering the interim Glenn decision, discovery denied where, “because of the conflict, the Court [had previously] permitted limited discovery that uncovered nothing probative”: “Further discovery is not warranted, and to permit the ‘fishing expedition’ proposed by Plaintiff would entirely frustrate ERISA’s efforts to avoid complex review proceedings”).

Thus, without necessarily opening the door to the sorts of broad ranging discovery that characterizes other civil litigation, Glenn does, through recognizing a broader view of how a conflict of interest may affect decisions, provides a basis for ensuring that relevant evidence can be found and introduced.

Taking Social Security Disability Decisions into Account

The Supreme Court’s handling of the plaintiff’s Social Security disability determination in Glenn should boost claimants’ efforts to have these determinations given consideration and weight. Prior to Glenn, a majority of courts held that such a determination cannot be summarily dismissed, but must be reviewed and accounted for in some way. E.g., Edgerton v. CNA Ins. Co., 215 F. Supp. 2d 541, 549-50 (E.D. Pa. 2002) (“Although an SSA decision may not be dispositive in determining whether an ERISA administrator’s decision is arbitrary and capricious, it is a factor that should be considered”). However, some courts have given the impression that such determinations are wholly irrelevant, or that the failure to consider such determinations is harmless. E.g., Suarato v. Bldg. Servs. 32bj Pension Fund, 554 F. Supp. 2d 399 (S.D.N.Y., 2008). In Glenn, the Supreme Court confirmed that ignoring a Social Security disability determination may not only constitute arbitrary and capricious decision-making, but evidence of a conflict of interest, as well:

[T]he fact that MetLife had encouraged Glenn to argue to the Social Security Administration that she could do no work, received the bulk of the benefits of her success in doing so (the remainder going to the lawyers it recommended), and then ignored the agency’s finding in concluding that Glenn could in fact do sedentary work … was not only an important factor in its own right (because it suggested procedural unreasonableness), but also would have justified the court in giving more weight to the conflict (because MetLife’s seemingly inconsistent positions were both financially advantageous).

128 S. Ct. at 2352. Although Chief Judge Roberts did not join the 5-judge majority in the conclusion that the recited facts were evidence of a conflict of interest, he agreed in his concurring opinion that “These facts … prove that MetLife abused its discretion in failing to consider relevant, expert evidence on the question of Glenn’s disability status.”

Conclusion

Because the Supreme Court’s holding in Glenn rejects a “smoking gun” approach to demonstrating a conflict of interest, claimants in the Second Circuit should have an easier time in challenging the decisions of insurers who both fund and determine claims. This relaxed standard should also make it easier to obtain discovery and admit evidence regarding such conflicts. Finally, as the result of this decision, claimants who have been awarded Social Security disability benefits, often with the help of their disability insurers, should have that fact considered in support of their claims.