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Ask Ely Your Own Question
Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 101607
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Mr. Dwayne are you available right now. I have a problem

Customer Question

Mr. Dwayne are you available right now. I have a problem with which I need immediate help.Thanks,JTC
Submitted: 3 months ago.
Category: Legal
Expert:  Dwayne B. replied 3 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

Expert:  Dwayne B. replied 3 months ago.

I am here, is there a specific question with which I could assist?

Customer: replied 3 months ago.
SUBJECT: Can Management Force You onto LWOP or Declare you having Been on LWOP w/o Your KnowledgeDear Mr Dwayne;I am retiring from the Huntsville Center of the US Army Corps of Engineers (HNC). The parting is not amicable. I have been fighting them for a long time.They stopped paying me in DEC 2015 so, I took my case to the Merit Services Protection Board. I lost the majority of my case and was forced to retire.On my retirement papers, prepared by HNC of course, they have me on Leave With Out Pay (LWOP) for seven [7 mos.] months and twenty-five [25 das.] days [6 MAR 2015 to 31 OCT 2015 {my retirement day}] during calendar year 2016.I requested and was granted LWOP for six [6 mos.] and six [6 mos.] months only. I can prove it with Six [6] copies of the completed, signed, and dated LWOP Request forms. I know nothing of the rest of these hours that are passed 30 JUN 2016 and I don't know why they didn't use 1 JAN 2015 to 5 MAR 2015.For determination of your retirement years of service, all LWOP time over six [6 mos.] moths in a calendar year is not counted into your service time. They claim I used one [1 mo.] month and twenty-five [25 das.] over so, they reduced my time in service by that much. That reduced my length of service to 19 years, 10 months, and 24 days. If you have twenty [20 yrs.] of service you retirement increases by ten [10 %] percent - about $ 150 / month..Can they arbitrary say I was on or put me on LWOP when I didn't know it, when I did not agree to it, and they know how it is harming my retirement ?Please get back to me as quickly as possible, I have respond by Monday [9 JAN 2016].Thanks,John
Expert:  Dwayne B. replied 3 months ago.

No, they can't arbitrarily assign you to a status like LWOP without you requesting it or something else happening. If they assigned you to it and you disagree then you certainly should have the opportunity to contest it under your due process rights.

You will want to hire a lawyer to help with this, you can fnd one at www.lawyers.com and in the section for Area of Practice enter Civil Rights.

Customer: replied 3 months ago.
Mr. Dwayne B;
You are the greatest. I was sure that is true but your saying it makes my day.
Please send me a 5 U.S.C section; or other Law or Regulation that support this situation.
Please give me some examples of "... something else happening."
Again, you are the greatest, thank you,JTC
Expert:  Dwayne B. replied 3 months ago.

There won't be a statute, it would be the Constitutional protection offered by the 5th Amendment. There is an explanation of due proces at https://www.law.cornell.edu/wex/due_process

There is also case law but the cost to do case law research is prohibitive, it costs a couple of hundred dollars for the simplest searches due to the databases we have contracts with and the time that it takes to do the search.

As far as "something else happening" the one that comes to mind is if you were in a coma or somehow unable to tell than that you wanted to take LWOP rather than lose your job and they just assigned you to it. There are likely other instances as well but I can't think of them off the top of my head right now.

Customer: replied 3 months ago.
Mr. Dwayne ;
I can not fight a Constitutional case and I don't want to. I will lose completely.
If what you have told me is true, there has to be CORPS' REGS or Something that supports this. OMP for sure has something [5 CFR somewhere] Please find me something I can hang my hat on that supports your "they can't" declaration to me. I've got to have something or all this is a waste.Please help me with this,JTC
Expert:  Dwayne B. replied 3 months ago.

I'm not sure what you mean, the provisions of the Constitution are usually not codified in another section of the statutes since that would create both duplication and ambiguity. I looked over the provisions of 5 USC and don't see anything that applies and I have dealt with many due process cases and have never had to cite anything except the Constitution.

The only place to get additional material would be in case law search but you would have to open another thread asking for that research to be done and someone else would likely pick up since I don't do case law research on here for a variety of reasons. The case law materials would be where you found specific applications of the due process issues to federal employment law.

Expert:  Dwayne B. replied 3 months ago.

Making this argument is no harder than making an argument based on a statute.

Customer: replied 3 months ago.
Mr. Dwayne B;
I must be misunderstanding you. Are you saying that I should say to the CORPS, "you put me on LWOP and the Constitution says you can't do that" and they are going to accept that and change it ?I did a quick LWOP Google and found the following:•The Family and Medical Leave Act of 1993 (FMLA) (Public Law 103-3, February 5, 1993), provides covered employees with an entitlement to a total of up to 12 weeks of unpaid leave (LWOP) during any 12-month period for certain family and medical needs. (See 5 CFR part 630, subpart L.)•The Uniformed Services Employment and Reemployment Rights Act of 1994 (Pub.L. 103-353) provides employees with an entitlement to LWOP when employment with an employer is interrupted by a period of service in the uniformed service. (See 5 CFR 353.106.)I need something like these to go with your "they can't arbitrarily assign you to a status like LWOP without you requesting " deliration.Please provide me with this type of SEE IT SAYS SO HERE proof.Thanks,JTC
Expert:  Dwayne B. replied 3 months ago.

I'm going to have to opt out of this one because we're not communicating. It will open up to another expert and they can address it for you.

Customer: replied 3 months ago.
Mr Dwayne B.:Than you for getting back to me so early this morning. I apologize for my poor communication skills and the discomfort I have caused you. Please pass al our correspondence to the new attorney as quickly as possible. I have to finish this Response by noon today because and I to hand carry it to Atlanta from Huntsville ad we are scared to death of the roads.Thank you for your efforts, I appreciate the very muchJTC
Expert:  Ely replied 3 months ago.
Hello,
Different expert here. I just wanted to weigh and and state that the previous expert (Dwayne) actually already answered your question. You have to look at the issue from the expert's point of view, which is the correct point of view, and it does not require nuanced case law per se.
Customer: replied 3 months ago.
Mr. Ely;Thank you for contacting me. I am not an expert but, my question has not been answered in a manner in which I can use it. I do not know what "nuanced" law is but, I know what I need. Some reference to in-force Law or Regulations or code or something else that says "..."they can't arbitrarily assign you to a status like LWOP without you requesting it or your knowledge so you can object ....". In this very treatment I have referred to CFR once and a CFR source also. I have no use for an "Expert's Point of View". Please prove Dwayne correct, and provide me a useable down-to-earth source or reference that will support Dwayne's statement and my position.Thanks for your help,JTC .
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