August 19, 2025

We get this question all the time. Unless your agency policy or union contract says otherwise, there’s not a statute of limitations when it comes to issuing discipline to federal employees who engage in misconduct, and the mere fact that time has elapsed does not bar an agency disciplinary action. That said, if the charged misconduct occurred several years ago, the employee can claim an equitable defense known as laches. Cornetta v. United States, 851 F.2d 1372, 1378 (Fed. Cir. 1988) (en banc).

According to Black’s Law Dictionary, laches is an equitable defense that bars a plaintiff’s claim due to unreasonable delay in asserting it, when the delay has prejudiced the defendant. In Federal employment law situations, it’s a defense used by an appellant when the appellant asserts an agency delayed too long in charging discipline, and that delay unfairly harmed the appellant’s ability to defend himself.

According to the MSPB, this defense bars an agency action only when an unreasonable or unexcused delay in bringing the action has prejudiced the appellant. Pueschel v. Department of Transportation, 113 M.S.P.R. 422, ¶ 6 (2010); Social Security Administration v. Carr, 78 M.S.P.R. 313, 330 (1998), aff’d, 185 F.3d 1318 (Fed. Cir. 1999). The party asserting laches must prove both the unreasonable delay and the prejudice. See Nuss v. Office of Personnel Management, 974 F.2d 1316, 1318 (Fed. Cir. 1992); Hoover v. Department of the Navy, 957 F.2d 861, 863 (Fed. Cir. 1992); Pepper v. United States, 794 F.2d 1571, 1573 (Fed. Cir. 1986).

An appellant can claim two types of prejudice:

  • Defense prejudice arises out of an appellant’s inability to present a full and fair defense on the merits due to the loss of records, the death of a witness, or the unreliability of memories of long past events. Cornetta, supra.
  • Economic prejudice focuses on the monetary consequences to the government should the claimant prevail. ; see Bailey v. United States, 144 Ct. Cl. 720, 722 (1959) (discussing the potential economic prejudice suffered by the Government in an employment dispute).

MSPB looked at this issue not too long ago. Consider Kolenc v. HHS, DE-0752-14-0488-I-1 (2023)(NP). The appellant’s misconduct occurred in the first half of 2011, the agency proposed removal in January 2014, and the removal was implemented in June 2014. The appellant claimed too much time had passed and asserted an equitable defense of laches.

The Board found the delay was not unreasonable, citing two precedential cases where it has “held that a 3-year period from the misconduct that formed the basis for a disciplinary action to initiating the action was not unreasonable.” Carr, supra, at 330-331; Special Counsel v. Santella, 65 M.S.P.R. 452, 465-66 (1994).

At FELTG we’ve always said that anything that has happened within the past year is certainly appropriate for discipline, but as you can see, it’s also possible to go back even further. Just be sure you’re prepared to defend your case to the MSPB. info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

August 5, 2025

Thanks for the question. While an employee has the right to defend himself against potential discipline both orally and in writing, there is still a requirement for honesty during his response.

An MSPB case from last summer comes to mind, Sandine v. Army, DE-0752-15-0113-I-1 (July 1, 2024)(NP). Here’s a timeline (all dates are from 2014):

  • July 29: Agency proposed appellant’s 14-day suspension “on the basis of false statements, attendance-related offenses, and failure to follow regulations related to his unauthorized use of the fitness center during duty hours,” from April to July.
  • August 18: Appellant submitted a written response asserting that he had been authorized to use the fitness center and alleging that the proposing official had misrepresented his statements, threatened to fire him, and warned him against talking to human resources (HR) or the equal employment opportunity (EEO) office.
  • August 29: Deciding official issued a decision sustaining the charges and imposing the 14 -day suspension.
  • September 5: Appellant’s second-level supervisor (who was the proposing official in the previous action) proposed his removal based on one charge of false statements and/or deliberate misrepresentations with five underlying specifications, each of which identified an allegedly false statement from the August 18 written response to the proposed 14-day suspension.
  • Date unclear: Appellant provided an oral reply to the proposed removal, denying he made any false statements in his response to the proposed 14-day suspension, and stated that while he regretted the tone of the response, he stood by his statements.
  • November 21: Deciding official (a higher-level supervisor) issued a decision finding that the appellant made deliberate false statements with the intent to avoid or mitigate potential disciplinary actions, and attempted to deceive the deciding official in the suspension action and to malign the proposing official. He also noted that the appellant was afforded ample opportunity to correct any false statements, but failed to do so. Even still, the deciding official determined that the appellant “deserve[d] a chance to correct [his] behavior and lack of integrity” and mitigated the removal penalty to a demotion.

Id. at 2-5.

The appellant challenged his demotion to the MSPB, and the Board upheld the demotion, despite the appellant’s allegations that he was punished twice for the same conduct. The Board explained that although related, the suspension and the demotion were based on separate incidents of misconduct, and different facts, and thus were not barred by the prohibition against double punishment. See Williams v. DLA, 34 MSPR 54, 58 (1987) (finding that the agency did not improperly discipline the appellant twice for the same offense when it suspended him on the basis of absence without leave and then removed him on the basis of false statements provided in response to a proposed suspension). Id. at 6.

TL; DR. Dishonesty during an investigation or in response to proposed discipline is a distinct act of misconduct, and employees can be held accountable for such statements. info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

July 15, 2025

Here’s a bit more detail on the question. Hypothetically, an employee was tardy on May 1, 2025. The employee was suspended on May 5-10, 2025, for an unrelated offense of inappropriate conduct and the suspension failed to address the May 1, 2025 incident of tardiness. Can the agency then discipline the employee on May 15, 2025, for tardiness that occurred on May 1, 2025? Or would the employee have to be tardy again after the suspension from May 5-10, 2025, in order for the agency to take action?

And our FELTG response:

Thanks for the question. The agency can absolutely discipline the employee on May 15, for the May 1 tardy incident, but it cannot rely on the May 5-10 suspension as an aggravating factor in determining the appropriate penalty for the May 1 incident.

Why, you might ask?

An underlying tenet of progressive discipline is that, by disciplining an employee with increasing degrees of punishment, the employee is given the opportunity to learn from his mistakes. Fowler v. USPS, 77 M.S.P.R. 8, 14 (1997). Because the May 1 misconduct occurred before the May 5-10 suspension, the employee had not yet been given the chance to earn the corrective benefit of that suspension when he was tardy. See also Castellanos v. Army, 62 M.S.P.R. 315, 324-25 (1994).

But that doesn’t mean the agency should ignore the employee’s May 1 tardiness; it has a couple of options:

  1. Propose/issue an appropriate level of discipline based on the circumstances of the tardiness but do not rely on the May 5-10 suspension as past discipline; or
  2. Rescind the May 5-10 suspension, pay the employee back for those days, and re-propose discipline with an additional charge of tardy added to the charge of inappropriate conduct. Because there are two charges instead of one, the penalty proposed would most likely be higher than the 6-day suspension for inappropriate conduct – unless the tardiness was very minor.

We’ll be discussing this very topic, as well as other hazards to avoid when disciplining employees, in several upcoming training classes so please join us if you can. info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

June 25, 2025

Let’s take a look at a recent case that discussed this exact question, when a GS-13 Deputy U.S. Marshal was removed for conduct unbecoming because while off duty he:

  • Went to a bar while carrying a personally owned handgun;
  • Consumed numerous alcoholic drinks, to the point where he blacked out, then walked to a localMcDonald’s and engaged in a verbal altercation with the cashier, and placed his agency credentials on the counter; and
  • After being escorted out of the McDonald’s, drew his handgun.

Brown v. DOJ, NY-0752-20-0061-I-2, 2-3 (Feb. 5, 2025)(NP).

The appellant filed a Board appeal, challenging the reasonableness of the penalty and arguing that his removal was the result of disability discrimination on the basis of alcoholism. Id. at 3. The administrative judge (AJ) found that the deciding official (DO) did not consider the appellant’s argument that the misconduct was caused by his alcoholism, so the AJ “conducted her own Douglas factors analysis, acknowledging that, while she accepted the fact that the appellant was an alcoholic, it did not warrant a lesser penalty due to the dangerous nature of the misconduct, his position as a law enforcement officer, the fact that alcoholism did not explain all of his misconduct, and alcohol rehabilitation did not entitle him to a federal law enforcement career.” Id. at 4.

On petition for review, (PFR) the appellant argued that the AJ erred by considering his alcoholism as an aggravating factor rather than a mitigating factor. The Board agreed, finding the AJ committed an error “to the extent that she considered the appellant’s alcoholism to be an aggravating factor in the initial decision…See Walsh v. U.S. Postal Service, 74 M.S.P.R. 627, 638-39 (1997) (explaining that claims of alcoholism, even if raised as part of an affirmative defense, should still be considered as a mitigating factor).” Id. at 5.

That said, the Board also determined the mischaracterization of the alcoholism as aggravating rather than mitigating was not prejudicial to the outcome of the case, and the aggravating Douglas factors still justified removal:

 

The appellant engaged in egregious and dangerous behavior, placing himself and innocent bystanders at risk. He brought a gun with him to a bar, consumed excessive amounts of alcohol, and displayed his agency credentials without official purpose, seemingly in an attempt to abuse his authority. … He engaged in a verbal altercation with an employee at McDonald’s to the point where he was escorted out of the restaurant by concerned citizens and drew his gun, further scaring those individuals… [T]he very core of a law enforcement officer’s role is to create safety, promote order, and enforce laws. The appellant broke the law, and his actions created chaos and endangered the safety of himself and others, which is antithetical to his role as a law enforcement officer. As the Board has held, the nature and seriousness of the offense is the most important Douglas factor, and we find that the outrageous nature of the appellant’s misconduct justifies removal.

Id. at 6 (internal citations omitted).

The Board also held the agency did not engage in disability discrimination.

We at FELTG cannot stress enough the importance of a thorough Douglas analysis. And if you do it well, your case might survive even if you make a mistake elsewhere. info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

May 21, 2025

Under the Controlled Substances Act, marijuana is still illegal and therefore any Federal employee is prohibited from using or possessing it in any form. And pending rulemaking, which would move marijuana from Schedule I to Schedule III, would likely have no significant impact on Federal employees as it will still a be banned substance.

Many agencies also have regulations or policies that prohibit employee use or possession of marijuana. Consider the California-based GS-9 Forestry Technician whose husband grew and sold marijuana on their property in California, a state where it was legal for him to do so. While there was no evidence the employee actually used the marijuana herself, residing in a place where it was grown and sold was enough to violate agency policy and support her removal for conduct unbecoming. Avila v. USDA, SF-0752-17-0488-I-1 (May 16, 2024)(NP).

Keep in mind, however, that possession or even use of marijuana is not an automatic removal situation – the facts of the case and the agency’s Douglas assessment will ultimately determine the penalty. See Betha v. USPS, CH-0752-19-0116-I-2 (Jul. 5, 2023)(NP)(Despite the appellant being a high-level supervisor who gave several of her employees marijuana gummies, the Board mitigated her removal to a demotion because, among other things, she had 33 years of service and marijuana was legal in the state where she purchased it). info@feltg.com

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The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

May 6, 2025

You betcha, as long as the agency proves the charge, justifies the penalty, and shows nexus.

Take a look at the recent MSPB case Hendricks v. DHS, SF-0752-20-0074-I-2 (Mar. 27, 2025)(NP). The agency removed a GS-13 Customs and Border Protection (CBP) Supervisory Border Patrol Agent (BPA) for conduct unbecoming a supervisory BPA, because of his posts on a private Facebook group page (called “I’m 1015”) that only a specific group of CBP employees could access. The posts were “unprofessional, derogatory, racially derisive, graphic, and harassing.” Id. at 2.

The initial decision included a thorough discussion of the 6 specifications the deciding official sustained:

  • Specification 1: You posted an image of Representative Alexandria Ocasio-Cortez’s face with open mouth being forced by President Donald Trump onto his crotch. In the caption of the picture you stated: “That’s right b*tches. The masses have spoken and today democracy won. I have returned. To everyone who knows the real me and had my back I say thank you. To everyone else? This is what I have to say ….” Above the face of President Trump, your name was written. Over Alexandria Ocasio-Cortex’s face was written “10-15.”
  • Specification 3: You posted a picture of a woman looking straight towards the viewer with the caption, “Here we have two people who love riding d*ck, staring at each other.” You tagged A[CON] to your posting.
  • Specification 4: You posted a picture of two bare-chested men with the words “All About Brojobs.” You tagged A[CON] and W[IDA] to the post, writing, “A[CON] and W[IDA] are all about these.”
  • Specification 5: You posted a picture of a woman in a bikini holding a sign that said, “I need feminism because I should be able to wear what I WANT and not be afraid of the possibility to get raped!” You tagged A[NOZ] to the picture when you wrote as a caption: “Well? Tell your mom I appreciate her optimism lol. A[NOZ]”
  • Specification 6: You posted a picture of a slightly injured finger with the caption: “CPC be like ‘We can’t accept him. You should have taken this guy directly to the hospital.'” The image with text posted by the appellant suggested that the Central Processing Center (CPC) will not “accept” an alien with a small cut to a finger.
  • Specification 7: On or about May 21, 2019, while on duty, you created and posted a poll in the Facebook page “I’m 10-15.” As a caption to the poll you wrote: “The whole Pay Reform thing is old. Agents who continually bring it up while still making over 110k a year just sound like whiney little bitches at this point.”

Initial decision at 8-27 (lightly edited for length and redundancy).

The administrative judge sustained specifications 1, 6, and 7 and upheld the removal. The appellant argued, among other things, that his postings constituted protected speech under the First Amendment. Id at 3.

The Board held that although specifications 6 and 7 presented a more complicated constitutional question related to the First Amendment, the conduct described in specification 1 did not constitute protected speech, and that alone was sufficient to sustain the agency’s overall charge and removal penalty.

The First Amendment question can be complicated and the initial decision contains a thorough and informative discussion, so I’d recommend a read if this is an issue your agency is facing. info@feltg.com

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The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

April 8, 2025

Thanks for the question. Because probationers have appeal rights in only limited situations, as far as we know there are no cases that involve a discussion of the merits of probationary separations (based on performance, conduct, or any other business-related reason); cases only exist for those separations the law explicitly identifies as granting a probationer an appeal right:

  • Partisan political activity
  • Marital status
  • Pre-appointment reasons

Plus, probationers can file complaints over

  • Discrimination or retaliation under EEO laws
  • Whistleblowing or other PPPs

So, there are two ways to approach your question:

  1. Interpret the OPM regulation at 5 CFR § 315.804 narrowly, and determine that because the section is titled “Termination of probationers for unsatisfactory performance or conduct,” this regulation strictly limits agencies to only separating probationers for performance or conduct reasons.
  2. Because there is no law that says, “An agency may only remove a probationer for A, B, C, D, and E,” work backwards from the limited situations where probationers have appeal rights (see above), and interpret the law to mean that any other business-related (i.e., non-illegal) reason is permissible. Regulations don’t – and can’t – exist for every possible scenario; perhaps it’s because of 5 CFR § 315.804 that historically probationary separations have been limited to performance or conduct reasons. Or perhaps the limitation is restricted to performance or conduct reasons.

In other words, until there is a law, regulation, or case that identifies other reasons why probationary separations are not permitted, many agencies have moved forward with the understanding that there are no additional appeal/complaint rights other than those situations identified above. The OSC, the MSPB, and the Federal courts are considering this now.

This recent cross-government separation of probationers has been, as far as we at FELTG recall, the first of its kind. We welcome further discussion, as this is uncharted territory. info@feltg.com

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The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

March 11, 2025

As is almost always the case, the answer is “it depends,” and the facts matter – but it certainly might. A recent EEOC decision considered whether the complainant was subjected to a hostile work environment based on race (white), national origin (Hispanic, Latina), and sex (female) when the agency’s Chief of Staff referred to her, a GS-14 Program Analyst, as “[Supervisor’s] helper” in a meeting with colleagues in the Office of Human Resources Management. Kenyatta S. v. GSA, EEOC App. No. 2024003194 (Sept. 30, 2024).

The complainant attempted to immediately address the situation with the Chief of Staff, but he “brushed it off and continued the meeting,” so after the meeting ended, she contacted him again and explained that she was “offended by the way he characterized her role and working relationship” to the supervisor. Id. at 3. According to the complainant, the Chief of Staff apologized but immediately started asking questions about the meeting, and while the Chief of Staff also wrote an apology, he “did not take responsibility for his actions and failed to acknowledge the mental anguish she experienced as a result of the comment.” Id. at 4. As a result, the complainant resigned from her position and filed an EEO complaint.

The agency dismissed the complaint for failure to state a claim, but on appeal EEOC reversed the agency’s dismissal and remanded the case. Ordinarily events that occur infrequently and are not severe do not state a claim, but EEOC found this case to be more in line with case law that has found “a limited number of highly offensive slurs or comments may in fact state a claim or support a finding of discrimination…” Brooks v. Navy, EEOC Req. No. 05950484 (Jun. 25, 1996). Id. at 10. The Commission also referenced case law that found dropping a person’s title or name when such conduct was intended to demean and challenge their legitimacy or presence within a group constituted harassmentId. at 13. (emphasis added)

Here, the Commission held that considering the intersectionality of the complainant’s race, sex and national origin, combined with the social context, the Chief of Staff’s conduct toward the complainant was severe enough to state a claim because he “effectively challenged the legitimacy of Complainant’s role within the Agency and called her competence as a GS-14 level employee into question. Moreover, the term ‘helper’ connotates a cultural stereotype specific to Hispanic/Latina women. Complainant was humiliated and distressed. She also feared for her professional reputation.” Id. at 14.

The EEOC remanded the case to be processed as a mixed case because the complainant alleged a constructive discharge in addition to a hostile work environment. info@feltg.com

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The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

February 25, 2025

Dear FELTG: Our agency has issued return to in-person work orders which require all employees with telework agreements to report onsite 5 days per week. Does this include people on telework as a reasonable accommodation?

I sure hope not.

Does an agency have the authority to cancel telework for its employees? Yes. Telework is a privilege, for most employees, and under the law (5 USC 302) and agency policies, management can require telework-eligible employees to report onsite. And they can remove employees who refuse. See Wong v. Commerce, DC-0752-17-0298-I-2 (Dec. 8, 2023)(NP).

BUT…sometimes telework is an entitlement. And telework as disability accommodation is one of the areas where a qualified employee may have just such an entitlement. Agencies violate the Rehabilitation Act if they remove a qualified employee’s existing accommodation without regard to the employee’s situation.

There are certain circumstances that give agencies the right to revisit an existing accommodation. But a unilateral cancellation of all telework, including telework as RA, is a losing battle for the agency, and may cause irreparable harm to the employee in the process.

Here are just a couple of cases where the agency violated the law when it revoked an existing telework accommodation:

  • Because she had irritable bowel syndrome, the complainant was on 100 percent telework with a flexible schedule. The accommodation had been in place for several years and she had been successfully performing her duties the entire time. A new supervisor took over the department and cancelled all existing telework agreements, including the complainant’s. The complainant notified the supervisor she needed telework to accommodate her disability and requested the RA be granted back to her, but the supervisor refused, claiming the complainant’s job was not telework eligible. Sandra A. v. Navy, EEOC Appeal No. 2021002132 (Sept. 16, 2021), request for recon. denied, EEOC Request No. 202200276 (Mar. 7, 2022).
  • The employee was on a schedule allowing telework Mondays, Tuesday, and Wednesdays, and reported onsite on Thursdays, because of medical restrictions. The agency changed the employee’s telework schedule despite her successful performance and the fact that she provided medical documentation that the schedule she had was the only accommodation that would work. Cheryl L. v. Treasury, EEOC Appeal No. 2021001710 (Sept. 26, 2022).

Telework as an accommodation isn’t going anywhere any time soon, so if you need training for your agency please let us know how we can help. A training class is a lot less expensive than losing a case before the EEOC. hopkins@feltg.com

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The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

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The following question came to us via Ask FELTG:

Is a Federal employee entitled to have an attorney represent them during an Office of Inspector General (OIG) investigation?

Thanks for the question. The answer – barring the existence of a union contract, which by law allows a covered employee to have representation during a Weingarten meeting – is no. Foundational MSPB case law tells us that an employee’s right to counsel is limited to criminal proceedings, and a Federal employee has no right to counsel during an administrative investigative interview unless:

(1)    The investigation may result in criminal prosecution, and

(2)    The interrogation takes place while the employee is in custody.

Chisolm v. USPS, 7 M.S.P.R. 116, 120 (1981); see also Ashford v. DOJ, 6 M.S.P.R. 458 (1981); Torain v. Smithsonian, 465 F. App’x 945, 948 (Fed. Cir. 2012).

So if the OIG investigation is not about a criminal matter and the employee is not in custody, the agency does not have to grant the employee’s request to have an attorney present.

A recent MSPB case looked at this very issue. Tate v. DOD, SF-0752-19-0692-I-1 (Oct. 3, 2024)(NP). The appellant, who was suspended for 60 days after the OIG found time and attendance violations, argued that he was entitled to be represented by an attorney during the OIG investigation, and because he was denied a representative, the suspension should be reversed. However, he had signed a form prior to the OIG interview, which specifically stated that his answers could be used “in the course of civil or administrative proceedings” but could not be used in a criminal proceeding unless he knowingly provided false information. Id. at 2.

In addition, the appellant was not in custody during the interview. According to the Board:

The appellant has not shown that he was compelled to appear before the OIG Special Agent. That he could have faced an agency disciplinary action for refusing to cooperate with the investigation does not alter that fact. See Weston v. Department of Housing & Urban Development, 724 F.2d 943, 947-48 (Fed. Cir. 1983) (finding that an employee can be removed for refusing to cooperate in an agency investigation if, among other things, the employee is informed that information obtained from the employee will not be used in a criminal proceeding against him) … Nor has the appellant cited to an agency regulation or policy or an applicable collective bargaining agreement provision setting forth a right to counsel in an OIG investigative interview. Thus, we find that the appellant has not shown that he was improperly denied the right to representation by counsel during the OIG investigation.

Id. at 3.

There are lots of rights and responsibilities and dos and don’ts when it comes to agency administrative investigations. Do you know which laws, regulations, and rules apply?

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The information presented is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

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