Disability Retirement for Federal Government Employees: Timing the Legal Tools

In any administrative procedure, the use of legal tools and citations may be of limited efficacy for the process itself; it is, however, building a foundation for future application, and to that extent it provides a fair warning to the agency.

Inasmuch as any portion of obtaining an entitlement or meeting an eligibility requirement engages the applicant with a faceless bureaucracy — and one which recognizably is filled with non-lawyers, clerks, etc. — there is always the question as to why an attorney is necessary at the administrative level of adjudication.

The reason is simple:  the non-lawyer governmental worker, while perhaps not fully appreciative of the legal citations which may be argued in a particular case, is nevertheless aware of the consequences of failing to acknowledge the validity of such references.  Being audited and finding that a particular case worker has a high percentage of cases denied, then reversed on an appeal to the Merit Systems Protection Board, has an impact upon the agency worker.

Furthermore, building a foundation for future reference before an Administrative Judge — where the Judge turns to the agency’s representative and asks, “Well, how about Case X, which has already been cited by the Appellant?” — can be quite effective and often short-cuts the entire process.

For Federal and Postal Workers who are attempting to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the effective use of legal tools and citations is crucial at all levels — if only to warn OPM of the consequences of having to go before an MSPB Judge for further adjudication of the case.

Sincerely,

Robert R. McGill, Esquire

Federal Worker Disability Retirement: The Problem of Conformity as a Thoughtless Process

The bureaucratization of society becomes a problem when conformity to a standardized process results in thoughtless action.  We have all seen scenes from movies, or read stories or books, of the proverbial drone-like monologue, shown in cinematographic hues in monotony, of emotionless workers who robotically stamp papers and call out, “Next!”.

To some extent, preparing and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, requires such conformity.  The standard forms themselves (SF 2801 series for CSRS employees; SF 3107 series for FERS employees; and for both CSRS and FERS employees, SF 3112 series) require a foundation of such conformity.  And while continuation sheets and attachments are not prohibited (yes, the double-negative in grammar means that it is a positive, and you may do what is proposed), it is nevertheless constraining when one is putting together a Federal Disability Retirement application.

On the other hand, standardization provides for uniformity and ease of information.  If everyone just submitted his or her own version of selective information and sent it in to OPM, there would be greater chaos than there already is at the singular agency which processes all Federal Disability Retirement applications.

Thus, conformity to standardized procedures can be a good thing.  The problem, however, is when such conformity leads to thoughtlessness — and, in a Federal Disability Retirement process, one should expect to encounter such bureaucratic mindlessness.  This, too, must be dealt with; and sometimes the need to use legal authorities as a sword, and not merely as a shield, is the only way of effectuating a required response.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Purpose of Standard Forms

Standard Forms represent the Federal Government’s attempt to streamline and create efficiency.  For FERS & CSRS employees who are seeking to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management, a compilation of Standard Government Forms will have to be completed.  

Obviously, this will not be a surprise to the Federal or Postal employee, inasmuch as such an encounter with the requirement of completing Standard Forms is a necessary evil during the course of any Federal or Postal career.  However, the difference in the case of filling out the Standard Forms for purposes of applying for Federal Disability Retirement may be encapsulated in a cautionary remark:  it is not just “information” which the Office of Personnel Management is seeking; it is also a particular kind of “proof” which, if not met, will result in a denial of a Federal Disability Retirement application.  

Thus, while SF 3107, and Schedules A, B & C (for FERS employees), and SF 2801 and Schedules A, B & C (for CSRS employees) may be the vehicles for providing basic personal information (e.g., name, address, agency for whom one works, etc.); it is the second series of SF Forms — 3112A, 3112B, 3112C & 3112D which seek to obtain information directly relevant to “proving”, by a preponderance of the evidence, one’s Federal Disability Retirement application.  

Remember the old cop-shows, where the officer says, “You have the right to remain silent, but anything you say may and will be used against you“?  The SF 3112 series should take that precautionary statement to heart.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: An Inherently Adversarial Process

One often hears about administrative procedures — that they are somehow distinguishable from court cases, EEOC proceedings, grievances, etc., in that they are “non-adversarial” procedures.  Really?  In designating it as such, one becomes lulled into thinking that, somehow, preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, is merely a matter of completing and submitting paperwork.

In a society which enjoys the safety of linguistic euphemisms, however, such an approach to an important application for benefits can result in devastating consequences.

Does a bureaucracy which is set up exclusively to review and potentially deny a Federal Disability Retirement application have the appearance of a non-adversarial process? Does the fact that one has a right to appeal it to the U.S. Merit Systems Protection Board, then to a panel of Administrative Judges for a “Full Review”, then to the U.S. Court of Appeals for the Federal Circuit, possess the scent of non-adversity?

A system which is set up with a specified statute of limitations, which employs procedural and substantive legal criteria set up to deal with appeals and submission of evidence; of a body of law which applies to determine the sufficiency of evidence; such a system is inherently adversarial in nature, and whatever words or string of words one might use to describe such a system, it is first and foremost, an adversarial process.

Treat it as such, or enter into its arena with caution and forewarning.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: As a Process

It is often a necessity to be reminded that the preparation, formulation, and ultimately the filing of a Federal Disability Retirement application under FERS or CSRS, with the U.S. Office of Personnel Management, is an administrative process.

By “process” is meant that it involves multiple levels of time frames and stages, and is not merely constituted by a single “filing” of paperwork.  It is not a defined “right” to a benefit which is triggered by a certain event — such as age, filing of a form, etc.  Rather, it is a benefit which is determined by an administrative process of eligibility.

One must prove, by a preponderance of the evidence, that one is “eligible” for the benefits.  In order to do that, one must, of course, meet each of the legal and regulatory criteria as set out by statutory authority, regulations propounded by the Office of Personnel Management, and case-law authorities handed down by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.

As such, time frames for issuing determinations are made by the agency granted such authority — the U.S. Office of Personnel Management.  And, further, the process will often necessarily involve multiple stages — the Initial Stage, the Reconsideration Stage, an appeal to the U.S. Office of Personnel Management, then a Petition for Full Review, and if necessary, an appeal to the Federal Circuit Court of Appeals.

Time frames, stages, applicability of the law, meeting each of the statutory requirements — they all constitute a long and complex “process”, and one which must be dealt with whether one agrees with it, wants to, or is somehow unprepared to do so.

Sincerely,

Robert R. McGill, Esquire

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: Areas of Practice

Invisible demarcation lines exist within each area of law, and if one envisions each such area of law somewhat like circles in a Venn Diagram, one can picture an overlap (sometimes quite significant) within the various areas of law.  

Thus, while the generic designation of “Administrative Law” might represent the primary demarcation, there will be subsets of legal practices, which include Social Security benefits, OWCP/FECA (Federal, as opposed to state OWCP attorneys), Veterans Benefits, EEOC, employment disputes, Federal Civil Rights violations, etc.  Some attorneys and law firms have specialties which include and embrace multiple disciplines; others attorneys or firms specialize in a single and exclusive area of law.  

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there are very few attorneys “out there” who are either experienced or have the requisite knowledge and experience to adequately represent Federal or Postal employees in putting together a compelling Federal Disability Retirement application under FERS or CSRS.  

It must be clearly understood that while preparing a Federal Disability Retirement application under FERS or CSRS may be “similar” to other areas of legal practice, the practice of Federal Disability Retirement has its own unique sets of laws, rules, criteria and statutory authorities.  Knowing one circle in a Venn Diagram does not mean that such knowledge automatically translates and crosses over into another circle.  Beware of anyone who expresses expertise in multiple areas of law; it might be that traveling in too many circles will result in a circularity of abilities.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Legal Arguments

Legal precedents are a necessary part of any process, and this is no less true when filing for Federal Disability Retirement benefits under FERS & CSRS.  Some argue that legal citations and references to legal precedents are less important at the Initial Stage of the process, but such a viewpoint ignores the fact that preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS is a “process” — not merely a one-time filing.  

Indeed, the distinction is important to note, because that is precisely why the entire administrative procedure of having an Initial Stage, a Reconsideration Stage, then an appeal to the Merit Systems Protection Board, then further appeals, is available for all Federal and Postal employees.  As a “process”, while each stage is considered in a “de novo” fashion (meaning, looked at “anew” without consideration of the prior decision), the legal precedents and citations which one refers to in order to establish one’s eligibility and entitlement to Federal Disability Retirement benefits under FERS or CSRS provide the foundational justification, no matter what stage of the process one is at.  

Thus, a legal citation argued for at the Initial Stage is valid for the Reconsideration Stage; a precedential legal reference made and argued at the Reconsideration Stage is valid for the MSPB, and so on.  As such, legal arguments provide for a continuum of arguing for one’s entitlement to a benefit which the Office of Personnel Management must justify in any denial it renders.

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