Medical Retirement Benefits for US Government Employees: The Issue of Discretion

A Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS may also be undergoing concurrent disciplinary proceedings, or engaged in corollary grievances, EEO Complaints, or involved in a lawsuit in a separate forum, either in the Federal Circuit Courts or at the Merit Systems Protection Board.  

In either event, the question often comes to the fore as to whether such collateral issues should be brought up in the Applicant’s Statement of Disability (SF 3112A) or perhaps in a legal memorandum or cover letter which argues the merits of the case, the legal basis for eligibility, etc.  The answer to the question as to whether, how and where is one of discretionary choice, and there is never a singular answer.  

A separate question to be asked of one’s self (with no obvious answer) is whether or not, if the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS does not bring up the fact of a collateral issue being litigated in a separate forum, will the Agency bring it up and discuss it in a way detrimental to the Applicant, and further, will the fact that the issues was not brought up make it appear as if the Applicant is somehow trying to hide the issue?  As with all such hypotheticals, the answer to all of the above is:  It all depends…  

Often, not mentioning a potential “red flag” until and unless it becomes a red flag is the best approach.  Sometimes, making a passing reference to the collateral issue may be appropriate.  In all instances, unless a connection can be made between the collateral issue and the issues central to a Federal Disability Retirement application — the medical basis and the impact upon one’s medical inability to perform the essential elements of one’s job — it is normally best to leave it alone.  In any case, such discretionary decisions should be made with the advice of an attorney.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement for Federal and Postal Employees: Legal Citations

Some question whether or not legal citations are necessary in filing a Federal or Postal Disability Retirement application under FERS or CSRS.  Certainly, as an administrative process in applying for a benefit from the Office of Personnel Management, there are individuals who attempt to obtain the benefit of Federal or Postal Disability Retirement benefits without the representation or assistance of an Federal Disability Attorney, and such “self-represented” individuals rarely refer to legal authorities or citations in such an application.

Are legal citations — or references to legal authorities, statutes or case-laws — “necessary” when filing an application for Federal or Postal Disability Retirement benefits under FERS or CSRS?  If by “necessary” is meant, is it a requirement in order to be eligible for obtaining OPM Disability Retirement benefits, then the obvious answer is “no”.

However, the purpose in referring to legal authorities is quite simple, and logically based:  As the Office of Personnel Management is required to apply the legal criteria in determining one’s eligibility for Federal Disability Retirement benefits, it makes sense to support one’s application by citing the legal authorities which reinforce and explain the legal basis for eligibility.

As such, while citing legal authorities is not a necessary condition in applying for Federal Disability Retirement benefits, it may be a condition precedent which may need to be sufficiently satisfied in order to favorably “weight” the successful outcome which is sought after.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement for Federal and Postal Employees: Administrative v. Adversarial

That is often the line of argument:  Since it is an “administrative process”, it is not adversarial.  This presumes quite a bit — such as, the term “adversarial” is constrained to applying only in such cases where a trial, a courtroom, and witnesses exist.  But if that is the case, then doesn’t that occur in a Hearing before the Merit Systems Protection Board? But that, too, is an “Administrative Process.” 

Such an argument, of course, is often used by Human Resources personnel to attempt to dissuade Federal and Postal workers of the necessity of retaining an attorney to file for Federal Disability Retirement benefits under FERS or CSRS.  Yet, further presumptions & assumptions would have to be made if one were to accept the argument that an “administrative process” is “non-adversarial”, such as:  the personnel who review and evaluate Federal Disability Retirement applications are “objective” and have no interest in approving or disapproving a case (this assumes that having or not having an interest in X makes the process “non-adversarial); or, that the Office of Personnel Management is merely applying the law in reviewing a Federal Disability Retirement application (this presumes that such application of the law is performed and accomplished correctly).  The concept of determining that a process is “administrative” does not exclude the reality that the same process is also “adversarial“; the two concepts are not mutually exclusive, and is not defined only within a universe where there are two or more contrary or opposing interests involved. 

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: The Tyranny of Logic

The general concept of ‘tyranny’ is normally reserved for extreme cases of autocratic emblems of dictatorships, governmental overreaching, denial of due process, etc., and is rarely used in addressing issues arising in Federal Disability Retirement laws governing Federal and Postal workers who are attempting to access an employment benefit which is part of the Federal and Postal employment package — that of Federal Disability Retirement benefits under FERS or CSRS.  In this use of the term, however, it is in conjoining two independent concepts:  that of ‘tyranny’ and that of ‘logic’.  The compounding of the terms results in a concept which is applicable in a positive sense.  Allow me to explain. 

In the course of filing for Federal or Postal disability retirement benefits, when one is denied at any level of the administrative process, one has a right to a further appeal.  Thus, if the application for Federal Disability Retirement benefits is denied at the First Stage of the process, then you have a right to have it ‘reconsidered’ (called the “Reconsideration Stage“, appropriately).  If it is denied a second time, you then have the right to file an appeal to the Merit Systems Protection Board — and beyond.  At each stage of the process, one hopes that in the review and evaluation of the Federal Disability Retirement application, first by the Office of Personnel Management, then by an Administrative Judge, then by a Federal Appellate Judge, that a set of legal criteria is fairly and uniformly applied, such that the ‘tyranny of logic’ rules.  In this sense, ‘tyranny’ is meant to apply in a positive sense, in that a logical, fair and uniform application of the law is applied to the set of facts presented by the Federal or Postal disability retirement application.  This all assumes, of course, that somewhere along the line of the ‘food-chain’ of review, that someone has been exposed to either logic, logical argumentation, or the ‘rules of logic’.  Hope springs eternally.

Sincerely,

Robert R. McGill, Esquire