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

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

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

Medical Retirement for Federal Workers: The MSPB

The Merit Systems Protection Board is the arena, in a Federal Disability Retirement application, where the issues are taken out of the control of the Office of Personnel Management for an independent review of a Federal or Postal employee’s disability application to obtain the benefit.  In a Federal Disability Retirement application, the Office of Personnel Management is given an opportunity (twice — at the initial stage of the process, then at the Reconsideration Stage) to make the “right” decision (in my view, “right” being an approval of a Federal Disability Retirement application under FERS or CSRS, at least for my clients).  

If that decision is a denial, at both levels, then the applicant has the right and opportunity to file an appeal to the Merit Systems Protection Board.  At that level, by a preponderance of the evidence, the Federal or Postal employee must prove that he or she meets the criteria, under the law, to be eligible for Federal Disability Retirement benefits.  Some de minimus extent of discovery is engaged in; a Prehearing Statement defining the issues and identifying the proposed list of witnesses must be prepared; and, finally, a Hearing is set.  It is the forum in which someone other than OPM will have a fresh opportunity to review the case, and this is a good thing.  Otherwise, only the fox would be guarding the hen house, and under that scenario, there would be very few hens left alive, if any.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Time

Time is of the essence in almost everything we do.  There are timed deadlines for filing a Federal Disability Retirement application; a great amount of time is taken in the bureaucratic processing of the application; greater time is taken by the Office of Personnel Management in reviewing, analyzing and deciding upon a Federal Disability Retirement application; appeals to the Merit Systems Protection Board require time within which one must prepare a viable case before an administrative judge, etc.  Time is a presence in every aspect of our lives.  But within that framework, a comparative analysis of time should always be taken into consideration.  To “rush” the preparation of a disability retirement packet is often penny wise but pound foolish; care and patience should always be taken, both in the writing, preparation and filing of anything to be submitted to a Federal bureaucracy; the Office of Personnel Management is no different.  Rushing something in order to “save time” is often counterproductive.  To take the time to prepare an excellent disability retirement packet will actually save time in the long run.

Sincerely,

Robert R. McGill, Esquire