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

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

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 denies a Federal or Postal 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 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 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 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