Federal Employee Medical Retirement: Proper Responses

A receipt of a denial from the Office of Personnel Management to a Federal Disability Retirement application under either FERS or CSRS is always an event which is upsetting to a Federal or Postal employee, but it is “part of the process” which occurs often enough.  

If it is a second denial (where a Request for Reconsideration has already been accomplished, and the Office of Personnel Management has denied it again), then the only appropriate response is to file an appeal to the Merit Systems Protection Board (no response is required, or even appropriate, to OPM, as it is out of their jurisdictional purview upon denying it a second time).  

If it is a “first denial“, then a “Request for Reconsideration” must be filed within thirty (30) days of the date of the denial letter (one can argue that the 30 days should be counted from the date of receipt, but it is always better to be on the safe side), and if requested, an additional thirty (30) days is automatically granted in order to have sufficient time to gather and submit further documentation to rebut and answer the denial from the Office of Personnel Management.

Submission of the Request for Reconsideration, and participation in the process of having the Office of Personnel Management reconsider the initial denial, is mandatory, not elective.  By this is meant the following:  You cannot bypass or skip the Reconsideration Stage and jump directly to the MSPB; you must first get a decision on the Request for Reconsideration before the Merit Systems Protection Board will consider your case.  

You cannot get angry or reactive and declare, “I will just file an appeal to the MSPB and have an Administrative Judge look at my case”.  You must patiently go through the proper channels of justice, and respond accordingly.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: OPM May Say So, But…

I often wonder how many unrepresented disability retirement applicants there are who, having received a denial letter at the First Stage of the process of filing for Federal Disability Retirement benefits under FERS & CSRS, never file a Request for Reconsideration because they believe what the Office of Personnel Management stated in the Denial Letter.  Sometimes, I will get telephone calls from people who want to file, and during the course of the conversation, it will come out that they had filed a few years previously, and had been denied.  “Did you file a Request for Reconsideration, at the time?” I ask.  “No,” is the answer.  “Why not?” I ask.  The typical answer?  “Because I just thought there was no way to fight them on it.” 

I used to be amazed at such answers, but after some thought, it makes sense.  As an attorney, my first instinct (both trained and natural) is to always take something to the next level, with the firm belief that I will prevail just by pure persistence, and by using the law as “a sword” in the process of fighting for my clients.  But most people are not lawyers (some would say, thank goodness for that, we have enough lawyers in the world), and when the Office of Personnel Management writes up a denial letter, then allegedly cites “the law”, and makes bold conclusions such as, “You do not meet the eligibility criteria under the laws governing disability retirement…”  It all sounds convincing.  It all sounds like any further action will be an act of futility.  But just because OPM “says so” doesn’t make it true, doesn’t make it right, and certainly doesn’t make it unwinnable.  They may say you don’t meet the eligbility criteria; I would argue otherwise.

Sincerely,
Robert R. McGill, Esquire