OPM Disability Retirement: Settlement of Collateral Lawsuits

Appearance versus reality has been an ongoing philosophical issue within the Western Classical Tradition for centuries; it involves the very essence of the culture and heritage of the West, beginning with the Pre-Socratics (e.g., Parmenides), and continuing with Plato, Aristotle…to Heidegger; and until the dawn of modern Philosophy, where linguistic hermeneutics began to prevail, constituted the dominant foundation of philosophical inquiry. How a thing is presented, or “looks”, as opposed to what a thing “really is”, or the “essence” of being, forms the fundamental philosophical inquiry.  

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is often the case that the Federal or Postal employee is involved in some collateral lawsuit or adversarial process — often directly with the agency itself, in an EEO forum, MSPB or U.S. District Court.  

Inevitably, settlement negotiations will often occur, and the issue of whether a Federal or Postal employee can be retroactively “separated” for his or her medical inability to perform one’s job may be offered.  How the settlement is formulated; what is stated in the settlement agreement; what promises are made, etc., are all important in order for such agreements to effectively assist in the Federal or Postal employee being able to obtain a Federal Disability Retirement annuity.  OPM objects to the Federal Retirement fund being used as a tool for settlement of collateral lawsuits.  

Any settlement agreement must not “look” like it is merely a carrot for enticement to medically retire.  The reality of the situation is important.  As always, we go back to our Western roots — appearance versus reality.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Agency Collateral Actions

Often, in the preceding years before preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, there is a “history” of events between an Agency and the Federal or Postal employee.  Life doesn’t happen in a vacuum, and such a trite adage is certainly true for the Federal and Postal employee.  

Whether in the form of an EEOC complaint or a response to an adverse action which promulgates an appeal to the Merit Systems Protection Board, or multiple other legal forums and responses, actions, etc., there may be a settlement of the issue, and the settlement of such collateral issues may involve a provision concerning Federal Disability Retirement.  

If in fact there is a reference concerning Federal Disability Retirement by the Agency as part of a “global settlement” of collateral issues, it is important to make sure that there is enough specificity in the language to make it worth one’s while to have the provision inserted in a settlement agreement to begin with.  Thus, a generic statement such as, “Agency endeavors to assist the employee in filing for Federal Disability Retirement” would not be very helpful, precisely because the term “assist” can be interpreted in multiple ways, and normally the way that an Agency will interpret the term will not in the least be helpful to the Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS.  Language is a tool which must be used carefully; the effectiveness of language, as with any tool, depends upon the competence of the user.

Sincerely,

Robert R. McGill, Esquire