When is “the law” effective? Especially when speaking about an administrative procedure such as filing a Federal Disability Retirement application, whether the Federal or Postal employee is under FERS, CSRS or CSRS Offset – what role does “the law” play in its procedural and substantive aspects?
Multiple distinctions are made on a daily basis with respect to the law’s efficacy; whether something is “legal” or not does not always mean that it is enforceable, for the costs associated may be prohibitively expensive. To have a “legal right” does not always mean that one should necessarily assert it, for there may be practical considerations that come into play before moving forward with applying that which is rightfully existent.
Further, the mere fact that the law may be “on the books” may not necessarily mean that a society will always raise it up from the dead and apply it; for, as customs and normative constraints alter, modify and become transformed by evolution of thought, it may well be that dogs best left sleeping are the ones who are never bothered.
In Administrative Law – which Federal Disability Retirement issues are a part of – there is always the question as to what role, significant, relevant or somewhat in between, “the law” plays, as many steps throughout the procedure and process must deal with non-lawyers who have no clue as to the existence, force or applicability of legal matters.
Thus, should the “Bruner Presumption” be argued at the initial stage of a Federal Disability Retirement application even though the OPM administrative specialist who is reviewing the Federal or Postal Disability Retirement claim may have no clue about its impact, doesn’t much care and will likely not give much thought to its contextual relevance?
Does Bracey v. OPM matter when discussing the finer points of issues pertaining to accommodations and reassignment, or is that merely some esoteric legal argument that should be reserved for the Third Stage of the process, if and when a Federal Disability Retirement application is denied twice (both at the Initial Stage of the process, as well as at the Second, Reconsideration Stage) and is appealed to the U.S. Merit Systems Protection Board and comes before an Administrative Judge?
Should Simpkins versus OPM always be argued for Veterans with Service-connected ratings, no matter what the ratings are comprised of?
The law’s efficacy is ultimately determined not necessarily by the quantitative bombardment of effective methodological argumentation, but by the qualitative selectiveness of who to argue to, when to argue and for what purpose. In the end, law’s efficacy is a strategic component that may determine the successful or otherwise outcome of a Federal OPM Disability Retirement application, and should be considered thoughtfully and with great preparation.
Robert R. McGill, Esquire