FERS & CSRS Disability Retirement Cases Before an MSPB Judge

When putting on a disability retirement case under FERS or CSRS before the Merit Systems Protection Board, it is essential that an applicant (if unrepresented) and the attorney (if represented, the applicant need not participate in any Prehearing Conference, but will obviously encounter the Judge during the Telephone Hearing) listens to the Administrative Judge during any Pre-Hearing Conference.

Most Administrative Judges are actually willing to help the appellant. While judges are unable to render legal advice or to actually lend counsel to the appellant, many administrative judges go out of their way to clearly outline for the Appellant the tools needed to persuade and win the case. Administrative Judges, for the most part, actually want to root for the appellant, and want you to put on a good case to persuade them to rule in your favor. In my opinion, an appellant should have an attorney at the Merit Systems Protection Board. At a Prehearing Conference, I listen carefully at any special concerns or comments which an Administrative Judge may make — because such concerns are often the key to winning the case for my client. Remember — judges are human; they want to root for the underdog; they want you to win your case.

Sincerely,

Robert R. McGill, Esquire

Reflections Upon Law, Arête (ἀρετή), and the Banality of Life

The practice of law is a peculiar exercise in combining the theoretical with the practical; in that sense, perhaps it is an anomaly in that the two disciplines rarely intersect, and the great divide between a conceptual discipline and a practical one is defied by the ‘practice’ of law. Indeed, the very phrase ‘practice of law’ is an anomaly — it is in Aristotle’s Nicomachean Ethics that the Greek philosopher notes that moral growth “comes about as a result of habit,” revealing to us the banal truth that excellence in something comes about through the habitual practice of that thing. Such a truth should be self-evident and unsurprising; yet, reflection on the very idea that to ‘practice law’ is to gain a level of competence and excellence in the endeavor is a frightening concept – especially for the client upon whom a lawyer practices. But, of course – it cannot be avoided; just as wisdom is reached through age, experience, encounters with difficulties, and overcoming life’s episodic challenges; similarly, a lawyer becomes competent in an area of law through the experience of research, preparation, depositions, trials (both wins and losses) – through the ‘practice of law’.

For the beginning attorney, the practice of law can be an unnerving prospect; for neither wisdom nor experience has yet been gained; ‘practice’ can be one of trial and error – literally. And even for an experienced trail attorney, the prospect of an overlooked detail, of an unexpected answer from a witness on the stand, or a sentence in a document that suddenly takes on a destructive life of its own in the midst of a trial – these practical aspects of law are what makes being a lawyer both exciting and angst-filled. Leibniz once wrote that virtue “is the habit of acting according to wisdom. It is necessary that practice accompany knowledge.” It is this latter statement – of the necessity of knowledge accompanying practice – is what is often ignored. The practical aspect of ‘practice’ in law does not mean practice without knowledge; and that is the difference between competence and incompetence. The great tool of a lawyer must always begin with the theoretical side of the discipline – knowledge. For knowledge is gained through study, research, observation and a humble recognition that we can never know enough.

Law combines the theoretical (research of case-law; systematic and logical argumentation of legal principles, etc.) with the practical (courtroom strategies; voicing sustainable objections; having the rhetorical ability of persuasion, etc.). In this world of pragmatism, however – where the practice of law is driven by profit-motives; where law has become not a profession, but rather a business; and where the art of trial-work too often gets reduced to obnoxious and aggressive acts of unprofessional behavior – the theoretical is too often expendable; the success of a case is based too often upon courtroom strategies.

We have lost something in this age; whether because technology has left irrelevant the necessity of quiet reflection; where poetry and metaphor can no longer impact the mind; or because we need constant entertainment as opposed to sustained meditation upon conceptual conundrums (reflect: if Wittgenstein, Wisdom, Derrida, et al are correct, that there are no substantive philosophical problems to be solved, and all that we are confronted with is a confusion of language, then what substantive issues are left which require sustained meditation?); and the loss of that which we must recover may be found in the very principle of ‘virtue’, or arête (ρετή) as found in Aristotle’s Nicomachean Ethics (Book II, Ch. 6), where he states, “Virtue then is a settled disposition of the mind determining the choice of actions and emotions, consisting essentially in the observance of the mean relative to us, this being determined by principle, that is, as the prudent man would determine it.” Arête is a principle with a pervasive quietude of enveloping profundity; it is a state acquired through habitual application over time; it cannot be reached in an episodic instance; it is almost a Zen-like principle (and yes, I have no qualms about using this term, despite being a Christian) where, if you ask yourself if you have acquired arête, then in all likelihood you have not. It is a level beyond mere competency or a quantitative roster of having won x-number of cases; it is, instead, a state of excellence.

We have lost that sense of having excellence as a goal, both in law as well as in all other aspects of life. We have goals to make money; to become an x; to go mountain climbing; we have financial and career goals; we have goals for our spouses, our kids – but when have you heard of someone saying, “My goal is to acquire arête“? It is a goal worth having; to reach a state of a life well-lived is a worthwhile goal. As the ‘practice of law’ is a combining of the conceptual with the theoretical, so is life itself; for as we mature, it is our conceptual framework; our ‘foundational beliefs’; our ‘noetic structure’; which determine our behavior in this temporal, short span we designate as ‘my life’ as opposed to ‘that other’. As with all disciplines, the practice of law is merely a microcosm of who we are in the macro aspect of living our lives. Hannah Arendt coined the famous term, “the banality of evil”; there is an even greater banality in the life we live as ordinary people – the banality of living a life of worth. That such a concept might become a banal one is of faint hope in this day and age.

Merit Systems Protection Board: A Different Animal

When an individual has attempted to obtain disability retirement under FERS or CSRS on his/her own, but has failed at both the initial stage as well as the Reconsideration Stage, while it is true that a Hearing before an Administrative Judge at the MSPB is to be heard de novo (meaning, heard “anew” and where new evidence may be submitted), it is always important to try and introduce something new above and beyond medical reports and records. This is why I normally insist upon having at least one doctor testify over the telephone. That way, everything can be presented and exposed: the Judge is able to hear first-hand the medical assessment and opinion of the treating doctor, and allow the doctor to be subjected to as much cross-examination as OPM’s representative wants.

This latter aspect is important for the administrative judge to see — that we (the applicant and the attorney) have nothing to hide; the opinion of the doctor is unequivocal and informed, and none of OPM’s questions can shake that opinion. This takes careful preparation and a systematic, thoughtful series of questions and answers between the attorney and the doctor, to meet each of the legal criteria demanded for approval of a disability retirement claim.

Sincerely,

Robert R. McGill, Esquire

Poetry, the Cab Driver, the Moon and a Life Well-Lived

As one grows older, hopefully the wisdom one possesses reaches an equivalency to the extent of gray in one’s hair, or the depth of wrinkles; and perhaps that wisdom is expanded in direct correlation to the differing breadth of perspectives and stories which one has encountered and collected throughout the years. By ‘stories’, I don’t mean fictional make-believes; rather, everyone has a story to tell, and that story of one’s life is a collected stream of events, encounters, vignettes of joyful explosions, puddles of grief, streams of memories with pock-marks of tragedies, comic situations, and in the end, a determination as to the life well-lived, or?

Read Anton Chekhov’s brilliant short story, Grief, in which the death of a cab-driver’s son leads to a multiple series of attempts to speak to passengers about his tragedy, and the utter lack of compassion between the strangers who wish to go about their lives; the clash of the humanity of the driver with the perspective which we all have — that the person we pay to transport us to a destination is not treated as a subject, but rather an object. That relationship is one of a contractual obligation — he is being paid to provide a service of transporting me to a specific destination, and of course we do not have time to listen to his subjective life — of personal grief or tragedy.

A ‘life well-lived’ — that is a difficult concept to embrace. Like grasping a fistful of sand and watching your palm become a swift and unforgiving hourglass the harder you close your fist. Once, a Japanese woman commented to me that we Americans destroyed all poetry by landing upon the moon, and showing the world needlessly that the moon was nothing but a composite of rocks, craters and lifeless soil; that the poetry which once filled the night air with its grandeur and beauty was forever relegated to a memory, now nothing more than a round tundra of cold, sallow realities; poetry died with the landing of man on the moon; romance was murdered; beauty became defined in systematic, scientific terms; and metaphor melted away with an avalanche of pragmatism, forever banished to the dusty bookshelves somewhere in the darkness of forgotten works, with Homer, Shakespeare, Blake; for who reads poetry? Who needs poetry? Science has taken the helm of hero-worship; we look only for what works, and what is profitable to man. But at the end of it all, one still has a need to ask: What is a life well-lived? And to answer that question, we need to look not only at the moon to see the poetry within the lifeless rocks and craters of shivering darkness; we have to look at the cab-driver and hope that he does not have to tell his story of grief to the horse at the end of the day.