There is always the danger accompanying it — That the presupposition was unfounded and you may be pointing out a problem that the other side never thought of. We are all aware of what assumptions can lead to, and so to make a preemptive argument is to enter into dangerous waters where unseen dangers may lurk.
How does one make the right decision as to whether to include the preemptive argument and how prominently should one make it? Such a question presupposes a cost-benefits analysis — of first determining how likely the other side will recognize certain weaknesses in your position, then providing the preemptive counterpoint accordingly.
In preparing a Federal Disability Retirement application under FERS, whether at the initial Stage or at the responsive Reconsideration Stage of the process, the point of making a preemptive argument depends upon the purpose for which you are making it.
For, at the Initial Stage of the process, you should make such an argument in an understated manner, all the while emphasizing the overall strength of the case; whereas, in responding to an OPM Denial and providing a responsive legal memorandum, any preemptive argument should be made both as a response to OPM as well as a preemptive appeal to an Administrative Judge at the U.S. Merit Systems Protection Board (MSPB) — in other words, the elaboration of an anticipatory argument, presuming that OPM is likely to deny the case a second time, as well.
All preemptive arguments possess inherent dangers, but as OPM systematically engages in a shotgun-scattering approach in justifying its denial of a Federal Disability Retirement Application, it is likely that any preemptive argument is in little danger of bringing up any surprises which OPM hadn’t considered, anyway.
Consider contacting a FERS Attorney to prepare and formulate an effective Federal Disability Retirement application under FERS, especially when formulating a cogent argument of preemptive significance.
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.