Federal and Postal Disability Retirement: The Long Road

The bureaucratic process identified as “Federal Disability Retirement” with the Office of Personnel Management is indeed a long, and often frustrating, endeavor to undertake.  

From the long wait at the initial stages of preparation and formulation; to the waiting wasteland once it gets to the Office of Personnel Management — including first the period of waiting merely to have it assigned to a case worker, then the long period of uncertainty while it has been assigned but pending an actual review by the OPM Caseworker; then, of course, if it is approved, the lengthy period of receiving interim (partial) pay before it gets “finalized” and calculated — this, all on the assumption that the Office of Personnel Management will perform the monetary calculations of backpay, interim pay and final pay in a correct, indisputable manner; and further, if it gets denied at the First Stage of the process, then the further period of waiting at the Reconsideration Stage of the process; and further, if it gets denied at the Reconsideration Stage of the process, then an appeal to the Merit Systems Protection Board.  

A recent case — indeed, just decided a couple of days ago — where the client went through the First Stage, the Reconsideration Stage, then a Hearing at the Merit Systems Protection Board, all without an attorney, and came to the undersigned attorney to file a Petition for Full Review at the Merit Systems Protection Board where, fortunately, there were enough legal mis-steps on the part of the Administrative Judge that the collective “we” were able to get it reversed and obtain an approval for Federal Disability Retirement benefits from the Office of Personnel Management — all told, took about 2 and a half years from the start of the process to the final decision.  By any standard, that is a very, very long time.  

Caution:  It is not recommended that an individual wait until after an MSPB decision to obtain the services of an attorney.  The wait for a Full Review by the MSPB 3-member Board alone took about 10 months, and moreover, it is very difficult to reverse the decision of a Merit Systems Protection Board’s decision.  It can be done (and has been done), but it is obviously a better idea to win at the MSPB Hearing level, and not try and reverse an AJ’s decision based upon an “error of law“.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The MSPB & Beyond, a Retrospective View

Assume the following hypotethical:  a Federal or Postal employee has filed for Federal Disability Retirement benefits under FERS or CSRS, and has been denied twice by the Office of Personnel Management, has gone before an Administrative Judge for a Hearing at the Merit Systems Protection Board, and now a decision has been made to file a Petition for Review.  

What is the MSPB looking for at a PFR?  

The arguments to be made will focus upon whether or not the Administrative Judge applied “the law” (collectively known for all of the statutes, rules, regulations and prior cases which have touched upon, defined, or otherwise decided upon, any and all issues concerning Federal Disability Retirement) correctly, or whether he/she made an “error of law”.  As such, from a retrospective viewpoint, what should have been done during the Hearing of the matter before the MSPB & the Administrative Judge?  The answer:  where possible, a citation of the applicable cases showing at each juncture of the evidence submitted, that it complied with a specific case and holding of a case.  With that “on the record”, it constrains the Administrative Judge from ruling against the Appellant, but more importantly for purposes of the Petition for Full Review, it establishes the errors of law which the Administrative Judge committed, for purposes of showing reversible errors at the PFR.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Beyond the MSPB

Not all cases that should be won, are won. No one can win 100% of the time; think about it — even the best Major League Baseball players strike out at least 2 out of every 3 at-bats. Most strike out every 3 out of 4 times. Fortunately, I am able to pass through a high percentage of my clients at Stages 1 or 2 of the Disability Retirement process, and that is how it should be.

Every now and again, however, a case must go to the Merit Systems Protection Board; and out of the small number that must get to that point, an even smaller number goes before an Administrative Judge who is clearly anti-employee, and ignores the law and sides with the Office of Personnel Management. Fortunately, most MSPB judges are fair and understand that disability retirement laws favor, for the most part, approval of disability retirement benefits. In those instances where, for whatever reason, a case has been denied at Stages 1 & 2, and the MSPB Judge completely ignores the strong and unequivocal testimony of the doctor, then there is still a good shot at winning the case at the 4th level — a Petition for Full Review.

Such a Stage must be approached by pointing out the legal deficiencies and, indeed, the Hearing Judge’s complete mis-application of the law. It must be done delicately and respectfully, however, because you are essentially asking that the Full Board (a panel of 3 Administrative Judges) reverse one of the Administrative Judges at the Merit Systems Protection Board — to declare that the Administrative Judge “erred” in applying the law. It is possible to do — but it must be done with care, respect, and technical expertise.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Petition for Full Review

The next step beyond the Merit Systems Protection Board, of course, is a choice: You can either file an immediate appeal to the Federal Circuit Court of Appeals, or file a Petition for Review before the Merit Systems Protection Board, where the decision of the Judge at the Merit Systems Protection Board will be reviewed by a panel of 3 Administrative Judges.

Normally, I recommend taking the latter route, only because it allows for another step to win, as opposed to putting all of one’s eggs in the proverbial “one basket”. If an individual has put on a case without being represented, by going through OPM’s procedures, then putting on a case at the MSPB, I will rarely accept a case at the Petition before the Full Board level.

My reasons are essentially as follows: First, it was not “my case”. The applicable criteria to have an MSPB case reversed by filing a Petition for Full Review, is to point out an “error of law” that the Judge made. If I put on a case before an administrative judge at the MSPB, I try and put on “my case” — one that I believe in; one that I am an advocate for; one that I am passionate about, because it is a case on behalf of a client whom I represent.

That is why I win most of my cases, both at the OPM level, as well as before the MSPB. When someone else has gone through the process, it is simply not “my case”. To nitpick for an error of law that the administrative judge had made, when it was not my case, and not the case-laws that I relied upon in putting on my case, is simply something that I have little interest in doing. That is not to say that a case cannot be won at a Petition for Full Review. I have won enough of them; it is a matter of pointing out the error of law which the administrative judge made; but a passionate argument is essential to winning such a review.

Sincerely,

Robert R. McGill, Esquire