Federal Worker Disability Retirement: The Applicability of the Legal Argument

If there is a legal argument to be made, make sure that it is applicable; further, it is important to distinguish between the necessity of making a legal argument, as opposed to allowing the facts to speak for themselves, and the medical reports and records to establish the necessary proof by a preponderance of the evidence.

In administrative law, and specifically in preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the “applicant” (the one filing for Federal Disability Retirement benefits, whether as a Postal Worker or as a non-Postal, Federal Worker) has the advantage of thoughtfully compiling the material, documentation, legal memorandum, narrative reports, and the entire compendium of proof necessary to meet the legal requirements of eligibility, and therefore entitlement, to Federal Disability Retirement benefits.

It is essentially a “paper presentation” to the Office of Personnel Management.  As such — because the applicant is able to take the necessary time and effort at the front-end of the process to prepare a compelling case, it is important to “pick and choose” the viable legal arguments to be made.

Sometimes, facts can speak for themselves, and there need not necessarily be a legal case to support the facts.  Other times, the medical report and records can meet the legal requirements, without citing a specific statute or case-law.  Then, there are applicable legal arguments which must, and should, be made, if merely because one should assume that OPM will not recognize the legal requirements unless aggressively informed about it.

In making such legal arguments, however, don’t undermine your own case unless you know what you are talking about.  Better to remain silent on matters not known, lest you reveal your lack of knowledge on the matter.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Legal Argument

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, one must always be cognizant of the “legal aspect” of the entire bureaucratic process.  For, ultimately, FERS & CSRS is based upon a statute, which has been further expanded and delineated in regulatory explication, and additionally, evolved through judicial decisions called “case laws“.  It is the compendium and compilation of a legal framework of administrative law which comprises the entirety of eligibility and entitlement to Federal Disability Retirement benefits.

Within this context, the U.S. Office of Personnel Management must make its decision upon a review of each and every Federal Disability Retirement application.  If in any single aspect of applying the law, OPM goes counter to, or misapplies the substance of, the legal framework — whether against the originating statute; in non-compliance with the regulations; in failing to apply the clarifications mandated by case-law; then, a decision by OPM denying a Federal Disability Retirement application can be reversed based upon an error in applying the law.

Thus, the importance of making a proper legal argument in a Federal Disability Retirement application cannot be overemphasized.  As “the law” is the basis of any civilized society, so the proper application of the law ensures the fair and equitable process due to each citizen who fits within the framework of the law.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement for Federal Workers: Facts, Proof & Truth

In a perfect universe, the conceptual distinction between facts, proof & truth would be non-existent:  facts would in and of themselves prove X, and the truth of the factual proof would be self-evident.  But this is neither a perfect world, nor one in which recognition or acknowledgement of true, proven facts are conceded easily.  Other human factors intercede:  self-motivation; possible unspoken quota system (did he really say that?); misapplication of a standard or legal criteria; lack of knowledge; lack of training to be able to recognize the distinction, difference, and intersecting significance of the three, etc.  As such, because we occupy an imperfect world, it is important to understand the conceptual distinction between the three.

In preparing, formulating, and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, many Federal and Postal employees approach the administrative process of filing for Federal Disability Retirement benefits as if merely stating the “facts”, however compelling and substantively emotive, will “prove” the “truth” of the applicant’s statement of disability. But “facts” are merely the substratum (to borrow Aristotelian language) of the methodological process of effective argumentation; they must be proven to the Office of Personnel Management, and such proof must be persuasive to a level where the reviewing individual at OPM is persuaded of the truth of such proof.

The key to persuasiveness, of course, is argumentation; and argumentation must involve validity based upon an objective methodology, a logical and sequential statement of relevant facts, and (in the case of an administrative process such as Federal Disability Retirement) reference to statutes, regulations and case-law which provide the foundational reference-point for establishing eligibility.  Human beings are by definition imperfect constructs.  Slightly above the apes (although that is debatable), and certainly lower than the angels (that is not in dispute), one must therefore recognize that facts must be proven, and the truth of such proven facts must be asserted.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The Necessity of the Legal Argument

Disparate facts, placed in the same vicinity, aggregated in order to formulate a composite of conceptual constructs, can provide to the recipient information concerning a specific issue, resolution of a problem, perspective on a viewpoint, etc.  However, when a particular issue is governed by statutory authority, history of case-law interpretation, and multiple sets of regulatory issuances from a Federal Agency — and, further, where it involves an application to prove eligibility, as opposed to merely filling out a form to ascertain entitlement — in such an instance, it is necessary to argue “the law” , as opposed to merely reciting a set of “facts”.

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 sometimes questionable as to the value of making complex legal arguments, especially at the initial stage of the process, and sometimes at the Second, or “Reconsideration” Stage of the process.  But that is the point, isn’t it — that it is a “process“, as opposed to a singular filing event?  For a process necessarily involves preparation and formulation not only for the “present”, momentary event; rather, it entails and encapsulates potential future considerations.

OPM cites “the law” right back at you in a denial letter; the Federal or Postal employee must be able to adequately respond by understanding, applying, rebutting and answering with the very laws which are referred to, implied by, or otherwise referenced in OPM’s denial.  Furthermore, preemptive recitation and reference to laws governing specific issues is always an effective methodology of arguing a case.  Remember:  Facts alone only arbitrarily provide information; information recited without context fails to make a case; it is through logical argumentation that the persuasiveness of a set of facts can be effectively conveyed in order to win a Federal Disability Retirement case.

Sincerely,

Robert R. McGill, Esquire

Disability Retirement for Federal Workers: The Cogent Argument

In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS and submitting it to the Office of Personnel Management, it is important to formulate a cogent argument for approval.  

There are different methodologies of persuasive argumentation — including logical argumentation; appeal to emotional elements; presenting a compendium of multi-faceted sub-arguments; overwhelming the listener with volumes of facts and issues, etc.

A cogent argument, however, involves persuasiveness by means of the logical structure, believability and inherent clarity and incisiveness of the argument itself.  It is the argument, in the context of a Federal Disability Retirement application under FERS or CSRS, which creates the necessary “nexus” between one’s medical conditions and the essential elements of one’s job.  For, whether one agrees with, or understands this (or not), in preparing a Federal Disability Retirement application under FERS or CSRS, and specifically when one writes the narrative presentation on the Applicant’s Statement of Disability (SF 3112A) , in describing one’s medical conditions and their impact upon one’s ability or inability to perform one or more of the essential elements of one’s job, you are arguing for persuasive effect.  

Cogency is the key to an effective argument.  Clarity of logical and sequential dependent clauses building upon an ultimate conclusion — or a conclusion which will systematically follow from the premises which are presented in a clear and concise manner — is important in making one’s “case” to the Office of Personnel Management.  

A cogent presentation is an effective one; lack of clarity only muddles the issues; and when a Federal or Postal employee is attempting to persuade, by means of a paper presentation, to a faceless bureaucracy, it is important to make the impact of cogency felt immediately.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Beyond the Bruner Presumption

The methodology of making extended legal arguments beyond the explicitly stated statute or case-law is a natural event, accepted and expected by Judges and opposing counsel.  However, there are unspoken but circumscribed limits to such arguments, and when an individual attempts to go beyond the parameters of rational argumentation, the entire argument loses its underlying credibility.  

Thus, in a Federal Disability Retirement application under FERS or CSRS, one may argue for the application of the Bruner Presumption once a proposal to removal a Federal or Postal employee for his or her medical inability to perform the essential elements of one’s job has been  initiated.  Such an argument would certainly be a logically viable one.  

Further, there is certainly legal authority and precedent for use of Social Security Disability approvals, and Veteran’s Administration ratings, as persuasive arguments in a Federal Disability Retirement case.  But how far can an argument — often “by analogy”, which has a long tradition of acceptance in the legal arena — be taken?  For instance, can an email discussion between supervisors within an agency discussing and admitting a proposed removal of an employee based upon his or her medical inability to perform the job be used?  Probably, but sparingly.  Can the Bruner Presumption be applied in such a hypothetical?  Probably not, but the principles underlying the case of Bruner v. OPM can certainly be argued as “further evidence” of the agency’s inability to accommodate the Federal or Postal applicant.  

These all constitute the boundaries of legal argumentation, which can be pushed to their limits, but with care and the tool of logical force.  But one must, of course, always be careful — because, to use a tool based upon logic implies that the user has been trained in logic and logical argumentation, which in and of itself is a discipline sorely lacking in many people, including many attorneys.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: OPM and the Law

The Office of Personnel Management is the agency which determines all applications for Federal Disability Retirement, whether under FERS or CSRS (or CSRS-Offset).  In making such a determination, a standard of “objectivity” is expected by each and every Federal and Postal employee, in making such a determination.  

The Office of Personnel Management (OPM) applies a set of criteria as determined by statute and further expanded upon by the Merit Systems Protection Board and the Federal Circuit Court of Appeals.  The entirety of “the Law” which governs and guides the eligibility and entitlement to Federal Disability Retirement benefits is thus based upon a patchwork of legal holdings, statutory language, and cases and legal opinions which have “evolved” over the years.  From this patchwork of laws, one expects a “representative” from OPM to apply it fairly, objectively, and without any arbitrariness or capricious intent.  Yet, since the individuals applying “the Law” at OPM — at least at the first and second “Stages” of the process — are not themselves lawyers, how realistic is this?  

Ultimately, legal arguments in persuading OPM to approve a case are best made when they are concurrently explained — explained in their logic, their force of argumentation, and in their applicability to a given issue.  Simply declaring that “the Law” applies will not do; one must sensitively guide OPM to understand the very laws which govern their behavior.

Sincerely,

Robert R. McGill, Esquire

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: The Law and Language

Language is the playground of the Attorney.  It is the heart and soul of his or her profession.  Through language, the attorney describes, delineates, argues, and provides a sequential (hopefully) rebuttal and attack upon any attempt by the “opposing” forces or the named “adversary” to undermine one’s logically structured application — in this case, an application for Federal Disability Retirement benefits under FERS or CSRS.  While logic and argumentation are the chosen methodology of attack, it is the stringing of descriptive words to create concepts; the sequencing of concepts in order to provide complex compounds of winning arguments; and the totality of language in order to convey meaning, persuade and bring about agreement. 

In Administrative Law arenas, especially in the law of Federal Disability Retirement, it is especially important to have the ability to describe, delineate, argue and persuade — because the package of persuasion is in written format — and the reader (a claims clerk at the Office of Personnel Management) does not know the disability retirement applicant personally, and only comes to know the issues, the person, the medical condition, and the intertwining compexity of the medical condition upon the person, through the words which are put together.  As such, how a Federal Disability Retirement packet is put together, which words are chosen, too few, too many, and what definitional arrows are meant to be conveyed, not only comprise part of a Federal Disability Retirement application; in many ways, it comprises the entirety of the process.

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