OPM Disability Retirement for Federal and Postal Employees: Defining Terms

In proceeding through the administrative and bureaucratic maze of filing for Federal Disability Retirement benefits under FERS & CSRS, one of the most frustrating encounters is the lack of an ability to concretely “define terms”, such that any disagreement with the Office of Personnel Management can be narrowly curtailed in order to allow for a proper response.  It is often contended that 99% of arguments and disagreements are non-substantive.  That is, because neither side defines the terms utilized in the argument, each side will argue at cross-purposes, never agreeing because there has been no prefatory attempt at defining the terms which are being used in the first place.  If you can, take the opportunity to sit and listen to two people arguing:  Are each using terms interchangeably and loosely?  Is person A using the terms in the same way and meaning as person B?  It is unfortunate that there is never an opportunity to have a “conversation“, in effect, with the Office of Personnel Management, before an Initial Decision is made. 

When one looks at an OPM denial, denying an initial Federal or Postal Disability Retirement application, the terms used, the criteria declared, the arguments made (if any), there is never a static point of reference in the terms defined.  Ultimately, of course, the point of needing to “define the terms” comes about at the Third Stage of the Process — at the Merit Systems Protection Board, where an Administrative Judge will be an arbiter and (hopefully) finally force a more stable use and definition of terms.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Arguing the Case

I recently wrote an article in FedSmith.com where I argued that the process of argumentation is often just as important as the substance of the argument itself.  For instance, technically speaking, the mere fact that a Federal or Postal employee under FERS or CSRS receives a proposed removal for one’s medical inability to perform one’s job, without actually being removed for that medical inability, does not accord one the Bruner Presumption.  And, indeed, there may be various valid reasons why a Federal Agency will hold off from actually removing an employee — often to the advantage of the Federal employee. 

During such a “suspension” period (sort of like being in purgatory in the Federal sector) between having a proposed removal and actually being removed, while one may not obtain the advantage in a Federal Disability Retirement application of the Bruner Presumption, one can still argue that one is essentially entitled to the Bruner Presumption, and that is often just enough to win the argument.  Thus, as I argued in the FedSmith article, the process is sometimes just as effective as the substance of the argument.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Imperfect Law

Law is an imperfect science; indeed, one could dispute the ascribing of law as a “science” at all, except in a generic, loose sense of the word.  Like the sciences, it is an observation and gathering of empirical evidence (“just the facts, please’); like science, it is an application of a hypothesis (proposing an applicable theory of law upon the gathered facts); and like science, the results of applying the hypothetical model upon the empirical evidence must take into account the factors of error, the possibilities of various elements which may impact upon a perfect study (i.e., the personalities and quirks of a jury or a judge, for example).   But that is where the resemblance between science and law end. 

More often than not, the practice of law is nothing more than what Hume’s famous argument concerning causality entails:  repetitive observation of an event does not necessarily result in the same effect the next time around; it is merely experience which guides the observer to predictably conclude certain end-results.  To that extent, administrative law, and specifically Federal Disability Retirement law for Federal employees under FERS or CSRS is no different.  Law, as engaged in actively by an attorney of law, is the acute observation of the facts, the application of the proper hypothetical model, and the combining of both — with the exception of taking into account one’s experience, the experience of past cases, and making discretionary decisions based upon all of the facts and circumstances.

Sincerely,

Robert R. McGill, Esquire