Federal Employee Medical Retirement: Continuation of the Offset Issue

As noted previously, the issue of whether or not OPM needs to recalculate one’s FERS Disability Retirement annuity upon losing one’s SSDI benefits should now be resolved.  

The U.S. Office of Personnel Management has been arguing for years, if not decades, that despite losing SSDI payments because the recipient has engaged in substantial gainful activity, that no recalculation is in order because the annuitant is still technically “entitled” to the benefits.  

The argument which the undersigned writer made before a 3-Judge panel of the U.S. Court of Appeals for the Federal Circuit, however, is the following:  How can one “offset” something with nothing?  As King Lear said to his daughter Cordelia when she refused to shower him with flowery praises of love, “Nothing comes from nothing”.  

Whatever word-games one may engage in, one cannot offset an amount of zero against another amount.  Further, since the FERS (and CSRS) Disability Retirement annuitant is allowed to make up to 80% of what one’s former position pays, it made absolutely no sense to penalize the individual who was receiving SSDI but loses it for making too much money, to not place him/her in the same position as one who never received SSDI.  

Common sense seems to have prevailed.  

The security of knowing that, in filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the Courts will actually reverse a nonsensical position of a government agency, is indeed something to smile about.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement Application: Starting with Basics

The complexities inherent in preparing, formulating, and filing a Federal Disability Retirement application with the Office of Personnel Management, whether under FERS or CSRS, are well-documented.  It can indeed be a daunting, intimidating encounter — for, while the Standard Forms themselves (SF 3107 series for FERS; SF 2801 series for CSRS; SF 3112 series — 3112A, 3112B, 3112C & 3112D for both FERS and CSRS) are rather simple in their outlook, it is the questions which are posed, and how one answers them, which will determine the success or failure of a Federal Disability Retirement application.  

Further, the laws themselves have evolved over time into a complex compendium of technical modifications and adjustments, as various legal issues have arisen in response to different determinations and decisions rendered by the Office of Personnel Management.  

When one first approaches the possibility of preparing a Federal Disability Retirement application, a view of the entire process and procedure is helpful, but then to step back and ultimately start the meticulous formulation of a Federal Disability Retirement packet with the “basics” in mind.  What are the basics?  Proper and compelling medical documentation; a description of the essential elements of one’s job; then the proper bridge between the two.  Without the proper bridge, it will lead to nowhere.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Beyond the MSPB

With certain notable exceptions (e.g., documents which could not be obtained prior to or during the Hearing; an SSDI approval which was awarded after the close of the record, etc.), the Hearing which is set for the Merit Systems Protection Board (better known by its acronym, the “MSPB”) is the time and place to prove by a preponderance of the evidence that a Federal or Postal employee is eligible to meet each of the legal criteria in a Federal Disability Retirement case.

MSPB Hearings for Federal Disability Retirement applications are performed telephonically; but beyond the time to submit all additional medical documentation and have any witnesses testify, it is the time to set the stage for a future Petition for Review (PFR) or an appeal to the U.S. Court of Appeals for the Federal Circuit. Any legal issues concerning the eligibility criteria, accommodations, sufficiency of medical documentation, etc., needs to be argued at this stage of the process, in order to be able to make the argument later that the Administrative Judge committed “legally reversible” errors in his or her Initial Decision on the case.  As with anything well-built, a solid foundation must be prepared, and in the arena of legal battles, the introduction of clear legal precedent is what establishes the foundation for a future appeal.

Sincerely,

Robert R. McGill, Esquire

Early Retirement for Disabled Federal Workers: The Appeals

While it is often stated that a Federal Disability Retirement application has three (3) stages to the process, there are additional appellate stages which must be considered, and certain additional steps and actions must be undertaken, in order to preserve the viability of the final two stages of the process.  The initial three stages are comprised of the (A) Initial Application Stage of the process in preparing and filing for Federal Disability Retirement benefits under FERS & CSRS; then (B) if it is denied at the Initial Stage, there is the Reconsideration Stage, where one may submit additional medical documentation and legal arguments, and finally (C) an appeal to the Merit Systems Protection Board, which takes the Federal Disability Retirement application out of the control and hands of the Office of Personnel Management, and allows for an Administrative Judge at the MSPB to hold a Hearing and make a determination.  

The two additional stages of the process for Federal and Postal workers who have filed for Federal Disability Retirement benefits, are:  (1)  a Petition for Full Review (which I recommend should be taken, in the event of a further denial by the Administrative Judge at the MSPB Appeal) and (2) the U.S. Court of Appeals for the Federal Circuit (which can be filed with directly after being denied at the MSPB level, skipping over the Petition for Full Review).  The last two stages of the process — the Petition for Full Review and the U.S. Court of Appeals for the Federal Circuit — will not consider any “new evidence” (except in some rare instances), but will be a review as to whether any error of law occurred.  As such, all of the previous steps of the process would be reviewed, and that is why at each and every step, it is important to know what is important in preserving one’s right to an appeal, what is a basis for an appeal, etc.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: The Coming Year

For all Federal and Postal employees who are considering, or may consider in the coming year, filing an application for Federal Disability Retirement benefits under FERS or CSRS with the U.S. Office of Personnel Management, I hope that this “continuing blog” has been helpful, and will continue to be helpful. 

In the coming year, I will attempt to stay on top of any changes in the current laws, including statutory changes (if any), any new developments handed down through opinions rendered by the U.S. Merit Systems Protection Board or the Federal Circuit Courts.  One’s future is what is at stake in making the all-important decision to file for Federal Disability Retirement benefits, and I will endeavor to remain informative, and provide you with a level of professionalism which all Federal and Postal employees deserve.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Argument by Analogy

Attorneys argue “by analogy” all of the time; cases and decisions from the Merit Systems Protection Board, and language from the Federal Circuit Court of Appeals, provide the fertile fodder for such argumentation.  Thus, such issues as to whether the Bruner Presumption should apply in the case; whether a case is similar to previously-decided Federal Disability Retirement cases; the similarity of fact-scenarios and legal applications — they are all open to argument by analogy.  That is why case-citations are important — even in arguing a Federal Disability Retirement case to the Office of Personnel Management.  Whether and how much influence such legal argumentation can have at the first two stages of the disability retirement application process, may be open to dispute; but cases should never be compiled and prepared for the first or second stage alone; all disability retirement applications should be prepared “as if” it will be denied and will be presented on appeal to the Merit Systems Protection Board.  Such careful preparation serves two (2) purposes:  First, for the Office of Personnel Management, to let them know that if they deny it and it goes on appeal to the Merit Systems Protection Board, they will have to answer to the scrutiny of the Administrative Law Judge; and Second, for the Administrative Law Judge at the Merit Systems Protection Board, to let him or her know that you did indeed prepare the case well, and that your particular Federal Disability Retirement application conforms to the law, and should therefore be approved.

Sincerely,

Robert R. McGill, Esquire