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

Disability Retirement for Federal Workers: When the Agency Promises…

The Federal Agency or the U.S. Postal Service for whom the Federal or Postal employee works, cannot “promise” the granting of a Federal Disability Retirement annuity.  Such promises are presumptuous and ultimately vacuous, precisely because it is on the independent agency — the Office of Personnel Management — which is the sole agency and arbiter for determining the viability, sufficiency and legal adequacy of all Federal Disability Retirement applications under either FERS or CSRS.

While agencies can be somewhat “helpful” in the processing of a Federal Disability Retirement application, it is important that if there is an ongoing collateral litigation (e.g., EEOC action; a pending parallel lawsuit; a grievance procedure invoked, etc.), that any settlement or discussion of settlement not state, infer or otherwise imply that the agency can provide the applicant with a Federal Disability Retirement annuity.  

Instead, the agency should complete certain forms consistent with the terms of any settlement; and, further, a separation from Federal Service based upon one’s medical inability to perform one’s job can invoke the Bruner Presumption, which can certainly be a plus in a Federal Disability Retirement application.  But recognizing the independence of OPM, and staying away from any appearance of “collusion” through promises that an Agency can somehow “promise” the Federal or Postal employee an approval from the Office of Personnel Management, is important to maintain.  

Agencies cannot promise a Federal Disability Retirement approval, and any such promise in a collateral source is only worth the cost of the paper it is printed upon — or, in most cases, even less.

Sincerely,

Robert R. McGill, Esquire