Medical Retirement Benefits for US Government Employees: To Resign, or Not

The question of whether a Federal or Postal employee should (or should not) resign from the job is one which cannot be answered in a vacuum.  Various considerations should be taken into account, but generally speaking, the rule of thumb which the undersigned writer poses in any circumstance is:  What is the compelling reason to do so, such that by resigning, one triggers the Statute of Limitations on filing for Federal Disability Retirement?

Certainly, there are dire circumstances which may necessitate a resignation: being able to access TSP funds because one cannot work because of one’s medical conditions, and one has no other means of support during the process; a pending non-medical adverse action which cannot reasonably be argued against, which may collaterally impact a Federal Disability Retirement application, with a settlement choice to resign for “medical reasons”; and some similar factual scenarios which may indeed warrant and dictate a resignation.

On the other hand, by remaining on the rolls of the Federal sector job, there are multiple advantages which may unfold for the future, including the assertion of the Bruner Presumption when the Federal Agency realizes that the Federal Disability Retirement package clearly shows an inability to perform one or more of the essential elements of one’s job and proceeds to remove the Federal or Postal worker based upon the medical inability to perform; a lack of triggering the Statute of Limitations, thereby extending the timeframe for multiple future attempts in filing for Federal Disability Retirement benefits; and other issues which need to be considered.

Resignation is an event of certainty, with no reversal; and in all such certainties, it should be done only if compelled by circumstances, facts and considered thoughtfulness.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: The Resignation Argument

Sometimes, in preparing to file for Federal Disability Retirement benefits from the Office of Personnel Management under FERS or CSRS, one is either forced to resign or, because of financial or other reasons, it is the best course of action to take.  

In any resignation, one should submit a resignation letter which clearly and concisely identifies the reason for one’s resignation:  Medical inability to perform one’s job.  While such resignation, for the reasons stated, may not invoke what is termed the “Bruner Presumption“, it nevertheless lays the groundwork for arguing that one is entitled to the Bruner Presumption.  

Now, understand that such an argument may fly completely over the heads of anyone and everyone at the Office of Personnel Management.  However, if the case is denied both at the Initial Stage of the Process, and at the Reconsideration Stage of the Process at the Office of Personnel Management, then it must be filed as an appeal to the Merit Systems Protection Board.  There, with an Administrative Judge reviewing the record, while it may still end up that one is not entitled (technically) to the Bruner Presumption, sometimes the strength of an argument in favor of a legal precedent is almost as strong as obtaining the substantive elements of the legal precedent.  

Indeed, if all of the corollary issues surrounding the stated resignation for medical reasons are consistent — the medical documentation; using FMLA; being on OWCP for part of the time, or otherwise only able to work part of the time; etc. — then the fact that one was forced to resign based upon one’s medical inability to perform one’s job, is a consistency worth documenting and arguing thus:  While it is true that one was not removed for one’s medical inability to perform the job, it is “as if” one was removed, because there was really no other choice available.  Sometimes, it is the argument itself which provides the foundation for persuasion, and not the technical application of a legal device.

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