The 2nd OPM and 3rd MSPB Stages: The True Reconsideration

Filing for a FERS Disability Retirement application is a long, arduous, and complicated bureaucratic process.  Preferably, one would like to obviously be approved at the First (INITIAL) Stage of the Process.  But these days as the U.S. Office of Personnel Management (OPM) is not easily inclined to approve a case at the first stage, it is the Second (Reconsideration Stage) which is a crucial and important event in the process.

At the Reconsideration Stage, 2 important factors are presented:  First, you have the chance to correct any alleged deficiencies which OPM points out, and; Second, and just as importantly, you can begin to prepare the way for an MSPB Judge to see the strength and coherence of your medical case.  For, if OPM denies you FERS Disability Retirement benefits a second time, it will then have to be appealed to the Third Stage of the process — an appeal to the U.S Merit Systems Protection Board (MSPB).

But as most opportunities are presented, the best way to approach this 2nd OPM Stage is to see it as a dual-purpose response:  First as a response to OPM’s Denial, and concurrently, as a legal argument to the potential MSPB Judge.

Furthermore, what OPM never tells FERS applicants is that a further “reconsideration” — a re-reconsideration — will occur if OPM denies the case a second time and an appeal is filed to the MSPB.

This is because the OPM Legal Specialist who will represent OPM at the MSPB will automatically review the case in its entirety, and re-reconsider it anew from an entirely different perspective – that from a legally sufficient perspective — in the same way, that the MSPB Judge will view it.

This is because the MSPB is a legal forum and not a bureaucratic forum —which brings us back o the “second” point in responding to an OPM Denial at the Reconsideration Stage — not only to correct any alleged deficiencies pointed out by the Office of Personnel Management, but moreover, to make persuasive legal arguments which point to the legally sufficient cogency of your application.

Thus, the Reconsideration Response should always include a Responsive legal memorandum arguing the applicable case law in preemptively preparing for the MSPB.  This not only prepares the way for arguing the merits of your case with the MSPB Administrative Judge but also gives a warning to OPM that your case will be legally invincible if and when it is appealed to the MSPB.

The best approach is to do things well from the very beginning, but even if your disability claim was already denied at the First Stage, for more reasons now, you need to contact a FERS Lawyer who specializes in Federal Disability Retirement law and prepare your disability case for the first appeal and reconsideration, but who also will assist you with the preparation of the “true reconsideration” stage — the re-review at the MSPB.

Sincerely,

Robert R. McGill
Specialized attorney exclusively representing Federal and Postal employees to secure their FERS Disability Retirement benefits from the U.S. Office of Personnel Management.

 

FERS Disability Law: The MSPB and Consistency of Argumentation

Is it even important, anymore?  Lawyers, of course, are notorious for making alternate arguments, presenting to a Judge or a Jury different explanations, alternative legal theories and justifications, often within the span of a single sentence, and even sometimes contradicting each other.

It is only when the contradiction occurs within the confines of a single theory that the Judge may say, “Wait, counsel — hoooooold on there!  Are you trying to argue X and Not-X at the same time?”  The answer by the clever lawyer: “No, your honor, I am merely pointing out that X could be, and Not-X is also credible, leaving my client to appear not only as an innocent bystander but, moreover, a not-guilty one as well!”

In some forums, that may hold; but in a Federal Disability Retirement case, the only way that inconsistency of argumentation works is when an OPM Medical Specialist says so.  OPM denies cases systematically without any regard to consistency of argumentation.  This is because there is no accountability at the U.S. Office of Personnel Management.  They can review a case, deny it, and it is out of the hands of the Medical Specialist who made the decision.

Then, at the Reconsideration Stage, a completely different Medical Specialist will make a brand new determination, based upon his or her own perspective and viewpoint, and it need not have any consistency of argumentation with the previous decision.

Fortunately, however, when it goes before an Administrative Judge at the U.S. Merit Systems Protection Board, Consistency of Argumentation becomes an important factor.  For, that is one of the primary basis upon which an MSPB Federal Disability Retirement case is lost — when consistency of argumentation based upon the evidence becomes questionable.

Inconsistency is the downfall of most cases at the MSPB; consistency — even with less than adequate evidence of a compelling nature — will often overcome much, and win the case.  The one thing that Administrative Law Judges at the MSPB dislike above all else: Inconsistency in testimony, Inconsistency in evidence, and Inconsistency in the closing argument of an attorney.

Sincerely,

Robert R. McGill
Lawyer exclusively representing Federal and Postal employees to secure their Federal Disability Retirement benefits under FERS from the U.S. Office of Personnel Management.

 

U.S. Merit Systems Protection Board & Disability Retirement: The Quiet Case

There are a significant amount — of the one’s without a fanfare, no formal MSPB opinion, but nevertheless, a “win”.

Many Federal and Postal employees get to that Stage — Stage 3 — an appeal to the U.S. Merit Systems Protection Board.  At this Stage, all reasonable attempts to persuade the medical specialists at the U.S. Office of Personnel Management have failed.

At the First Stage of the process, you filed your best shot and provided the utmost of medical documentation, but they denied you, anyway.  Perhaps it was because your previous year’s performance ratings were excellent, and you may have even received a cash award.  Or, maybe the medical opinions of your doctors were not sufficient.  Maybe OPM wasn’t persuaded that your condition would last at least 12 months.

Whatever the reasons, you had to go through the Second Stage of the process — the Reconsideration Stage.  You gathered whatever else you could, and submitted it within the timeframe allotted.  You hoped for the best.  When the denial came — the Second Denial — you knew you were in trouble.  The MSPB?  How are you going to maneuver through that complex maze before an Administrative Judge?

And this is essentially the “last stop” — for, if you don’t win it here, you will likely not prevail at a Petition for Review, and going to the Federal Circuit Court of Appeals is prohibitively expensive, and likely not winnable.  Yet, the MSPB opens up a great opportunity — for, what most people don’t realize, is that it is an opportunity for “the Quiet Win”.

Before you ever go to a Hearing on the case; before you have to prepare your Pre-Hearing Submissions — it is an opportunity to listen carefully to the OPM Representative assigned to your case.  If you listen carefully, you will have the opportunity to quietly and behind the scenes, submit additional evidence which could result in that 2.5 Stage of the process — between the Denial of the Reconsideration Stage and the Hearing before an Administrative Judge at the MSPB.

Of course, it will help if you also have an experienced FERS Disability Retirement Attorney involved, who can help you through the “Quiet Case.”

Sincerely,

Robert R. McGill
Lawyer exclusively representing Federal and Postal employees to secure their Federal Disability Retirement benefits under FERS from the U.S. Office of Personnel Management.

 

Postal and Federal Disability Retirement: The MSPB & the Window of Opportunity

At the Merit Systems Protection Board (MSPB), there are multiple critical points of opportunity in which to convince, persuade and otherwise have a discussion with the Office of Personnel Management (OPM) to reverse their earlier denial of a Federal Disability Retirement application.

Remember, however, that this is the arena and playground of lawyers.  While an applicant who has meandered through the intricate administrative process of preparing, formulating and filing for Federal Disability Retirement benefits from the Office of Personnel Management, can certainly survive the administrative procedures as circumscribed by the Merit Systems Protection Board, it is a good idea to have legal representation— obviously, from the very beginning; if not, then to represent one’s interests in rebutting an initial denial at the Reconsideration Stage; if not (again), then to have proper representation before the Merit Systems Protection Board (MSPB).

Whether at a Preliminary Conference to discuss the forthcoming issues, or at a Prehearing Conference — or, in preparing and filing a Prehearing Statement as ordered by the Administrative Judge at the MSPB — opportunities arise for the Federal or Postal worker to submit additional medical evidence which can potentially persuade OPM’s representative to reverse the two previous decisions of denial.

Such opportunities must be carefully embraced.  Yet, often, a Federal or Postal employee who is unrepresented at the MSPB is unaware of the opportunities which arise, at which points, in what circumstances, and the Administrative Judge is bound by duty and position to remain neutral.  Then, of course, there is the Hearing at the MSPB, in the event that OPM does not reverse.  Whatever the circumstances of the Federal or Postal employee who is or will be filing for Federal Disability Retirement benefits under FERS or CSRS, an advocate to represent the Federal or Postal employee’s interests is paramount. Don’t “go it alone”; for, to do so will often only lengthen the process.

Sincerely,

Robert R. McGill, Esquire

 

FERS & CSRS Disability Retirement for Federal and USPS Workers: The MSPB

The Merit Systems Protection Board (better known by its acronym, the “MSPB”) is the third stage of the administrative process in attempting to obtain Federal Disability Retirement benefits under FERS or CSRS.  By this Stage, while the Office of Personnel Management has been both the “judge and jury” for determining one’s eligibility for Federal Disability Retirement benefits, the case is then handed over to an Administrative Judge to be the arbiter of such determination.

While it is advisable for a Federal or Postal Worker to obtain a FERS/CSRS Disability Attorney from the start of the administrative process, it is of even greater importance to consider obtaining proper legal representation before proceeding down the path of the MSPB.  This statement of advising any Federal or Postal employee to obtain proper representation at the MSPB is made for several reasons, not the least of which includes the following:  The MSPB is the last “stage” of the process in which a Federal or Postal employee who is seeking to obtain Federal Disability Retirement benefits may submit evidence in order to prove one’s case (with some special exceptions); any basis for an appeal, upon the chance that the Administrative Judge rules against you, must be established during the Hearing of the case at this stage; and since this stage is the arena of “the law”, it is important to be familiar with the most recent case-laws which govern Federal Disability Retirement.  The MSPB is not a place to feel one’s way through; it is the playground where the “grown-ups” play.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: When to file for an MSPB Hearing

Filing for Federal Disability Retirement benefits under FERS or CSRS is what is generically known as falling under “Administrative Law“.  That is, Federal and Postal employees must undergo the administrative process of filing with a Federal Agency, the Office of Personnel Management, in an attempt to prove by a preponderance of the evidence that one is eligible for, and therefore entitled to under the law, Federal Disability Retirement benefits under either the Federal Employee’s Retirement System (FERS), the Civil Service Retirement System (the “older” system, or CSRS), or its hybrid, the CSRS-Offset.

If the Agency which makes the decision on eligibility, and it denies a Federal or Postal Service employee’s application twice (both at the Initial application Stage of the process, then again at what is termed the “Reconsideration Stage” of the process), then the disability retirement case can be appealed to an Administrative legal forum specifically set up to hear such cases (as well as many other types of cases involving Federal and Postal employees).

In order to file with the Merit Systems Protection Board (the “MSPB”), one must have received a “final denial” letter from the Office of Personnel Management — and, by “final”, is merely meant the “second denial” letter.  Thus, in order for the Merit System Protection Board (MSPB) to consider an appeal for one’s Federal Disability Retirement benefits, the Federal or Postal employee must have been denied by the Office of Personnel Management on the first two tries — first, with the Initial Application, then for an appeal or the ”Reconsideration” of that application.  Only then may a Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS, CSRS or CSRS-Offset file an appeal with the MSPB.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: MSPB & Prehearing

When a Federal Disability Retirement case has been denied by the Office of Personnel Management at the Initial Stage of the application process, and then again at the Reconsideration Stage of the administrative process, then it must be appealed to the Merit Systems Protection Board.  At that stage, the applicant (with the help of his or her attorney) must meet some crucial dates.  

While the Administrative process of having a Hearing before the Merit Systems Protection Board is fairly straightforward, once the Prehearing Statements are filed, it is important to participate in the Prehearing Conference with the Administrative Judge.  At the Prehearing Conference, it is important to define and limit the issues which will have to be proven at the Hearing of the case.  Issues such as accommodations and even the extent of the medical conditions which impact one’s inability to perform the essential elements of one’s job, can be clearly defined.  The individual (but more likely the attorney — because at this level, it is helpful to have the guidance of an attorney) should be very familiar with entirety of the Agency file (a copy of which OPM is required to provide after an appeal is filed with the MSPB).  This way, during the conversation with the Administrative Judge, one can say:  “Yes, Your Honor, that is already proven by document at Tab ____ of the Agency file, and need not be re-proven at the Hearing of the case.”  As with everything in life, preparation, preparation, preparation…

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The MSPB Hearing

If you find yourself at the Merit Systems Protection Board trying to prove to an Administrative Judge that your are entitled to Federal Disability Retirements benefits under FERS, and you have already filed a Prehearing Statement, and your witnesses have been approved at the Prehearing Conference, and further, you have outlined all of the issues, set forth the legal basis, and proffered the expected testimony, it is then “showtime”.

It is obviously preferable for an applicant who is filing for OPM Disability Retirement benefits to be represented by a Federal Disability Attorney — if possible, from the inception of the process, through the Reconsideration Stage, to the MSPB.  However, if a Federal or Postal employee finds that, for one reason or another, you simply cannot afford an Attorney, then here are three (3) tips if you find that you are before an MSPB Administrative Judge:  (1)  Have a doctor testify, and make sure that the testimony of the doctor is precise and to the point (2) Make sure that what you prove to the Judge correlates with what you said you would prove in your Prehearing Statement, and (3) Be prepared to make objections to any of OPM’s cross-examination questions.

Finally, remember that the point of making an objection during a Hearing is not to necessarily stop the question or answer, but rather, to preserve the point for a possible appeal.  It is ultimately difficult for a non-attorney Federal Disability Retirement applicant to formulate and prepare for an effective Merit Systems Protection Board Hearing, and further, it would be better if the Federal or Postal employee had an attorney (who is well-versed in Federal Disability Retirement law) throughout the entire process; but one must play the hand one is dealt with, and that old adage is true even with a Federal or Postal Disability Retirement case under FERS or CSRS.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: The Connection between the Prehearing Statement and the Hearing

When a Federal Disability Retirement application under FERS or CSRS has been denied twice by the Office of Personnel Management, and one appeals the Federal Disability Retirement case to the Merit Systems Protection Board, there comes a point when the scheduling order requires that each side (the “Appellant” or the one who filed the appeal, and the Office of the Personnel Management) file a “Prehearing Statement”.  

Do not underestimate the importance of preparing a Prehearing Statement.  It is not simply a listing of the witnesses to be testifying at the MSPB Hearing; more than that, it is an opportunity to set the issues, to form in the mind of the Administrative Judge the parameters of what will be proven; an opportunity to proffer and plant the seeds of the evidence which will be presented; to undermine and preempt many of the arguments which are used customarily by the Office of Personnel Management; to argue for the Bruner Presumption (even if it does not strictly apply); and to show how, at this preliminary stage of the process, that the upcoming Hearing is really an unnecessary event.  Thus, the Prehearing Statement, as well as the Prehearing Conference, is an important preliminary step in setting the stage for success in a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: Preparing for an MSPB Hearing

There is a singular focus when preparing for a Hearing at the Merit Systems Protection Board:  that of persuading and convincing an Administrative Judge that you have proven, by a preponderance of the evidence, that you are entitled to Federal Disability Retirement benefits.  Of course, as I have often pointed out in the past, the full and complete preparation for an MSPB Hearing should have come about throughout the first two stages of the process — in the initial application for Federal Disability Retirement, and in responding to the Office of Personnel Management at the Reconsideration Stage of the process.  The fact that the Office of Personnel Management denied a case twice does not mean that the Applicant or his/her attorney did anything “wrong”; rather, it merely means that the Office of Personnel Management was wrong twice over.  Beyond the singular focus upon the MSPB Administrative Judge, there must be a multiple focus before the actual day of the Hearing:  Prepare, prepare, and prepare.  That means:  Go through the Agency records with a fine-toothed comb; prepare by anticipating any cross-examination questions which OPM may have; prepare the witnesses; prepare the closing argument.  Preparation is the key to every litigation, and a Hearing before the MSPB Administrative Judge is no different.

Sincerely,

Robert R. McGill, Esquire