Disability Retirement for Federal Government Employees: Timing the Legal Tools

In any administrative procedure, the use of legal tools and citations may be of limited efficacy for the process itself; it is, however, building a foundation for future application, and to that extent it provides a fair warning to the agency.

Inasmuch as any portion of obtaining an entitlement or meeting an eligibility requirement engages the applicant with a faceless bureaucracy — and one which recognizably is filled with non-lawyers, clerks, etc. — there is always the question as to why an attorney is necessary at the administrative level of adjudication.

The reason is simple:  the non-lawyer governmental worker, while perhaps not fully appreciative of the legal citations which may be argued in a particular case, is nevertheless aware of the consequences of failing to acknowledge the validity of such references.  Being audited and finding that a particular case worker has a high percentage of cases denied, then reversed on an appeal to the Merit Systems Protection Board, has an impact upon the agency worker.

Furthermore, building a foundation for future reference before an Administrative Judge — where the Judge turns to the agency’s representative and asks, “Well, how about Case X, which has already been cited by the Appellant?” — can be quite effective and often short-cuts the entire process.

For Federal and Postal Workers who are attempting to obtain Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, the effective use of legal tools and citations is crucial at all levels — if only to warn OPM of the consequences of having to go before an MSPB Judge for further adjudication of the case.

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

Federal and Postal Disability Retirement: Legal Standard & Persuasion

There is a distinction between the existence of a legal standard and the citing of such legal standard — to include statutory references, case-law citations, etc. — and the art of persuasion.  In reviewing Federal and Postal Disability Retirement applications which have been previously prepared, formulated and submitted by unrepresented Federal and Postal employees, which have been denied, it is often refreshing to see how laymen (i.e., “non-lawyers”) have utilized cases and case-law citations (often straight from some of my articles and blogs) in arguing his or her case. 

The problem with such an approach, however, is that the unrepresented Federal or Postal employee will often refer to such legal standards without engaging in the necessary art of persuasion.  Legal standards are certainly there to be used; however, there is a proper way and methodology of utilizing legal standards, and an improper way.  The improper way is to use the legal standard as a hammer — of stating:  X exists and states Y, therefore you must conclude Z.  The proper methodology in utilizing a legal standard is to engage in the art of persuasion:  X exists, and X determines why Y must come about, and therefore Z should be the logical conclusion, and here are the reasons why. 

Normally, I advise against non-lawyers using the law precisely because of the potential mis-application of the methodology.  Leave the law to lawyers; that is why lawyers are hired.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Objectivity & Legal Arguments

Having written about the importance of maintaining a level of objectivity in preparing, formulating and submitting a Federal Disability Retirement application under FERS or CSRS, and further, about the necessary component of a legal argument and references to prior legal citations, it is of note that the two intersect in significant ways.  Because the law, statutes, cases, etc., are intended to apply to everyone, it is meant to be a ‘universal principle’.  Whether one agrees with the law or not is beside the point, and ultimately irrelevant.  

Further, one must make a distinction between using the law as either a shield or a sword, and for a Federal or Postal employee who is considering citing the legal precedents in filing a Federal Disability Retirement application, it is important to utilize the law, case-law and statutes as a ‘sword’ in order to persuade the Office of Personnel Management to approve your case.  

The two together — of maintaining a level of objectivity in preparing a Federal Disability Retirement application by focusing upon the medical reports & records; citing case-law and legal precedents to argue one’s case in an affirmative manner — form a powerful and compelling basis in any Federal Disability Retirement application.  The intersection between the two — objectivity and legal arguments — direct the tone, tenor, and foundation of any Federal Disability Retirement application.

Sincerely,

Robert R. McGill, Esquire

FERS & CSRS Disability Retirement for Federal and USPS Workers: Legal Arguments

Legal precedents are a necessary part of any process, and this is no less true when filing for Federal Disability Retirement benefits under FERS & CSRS.  Some argue that legal citations and references to legal precedents are less important at the Initial Stage of the process, but such a viewpoint ignores the fact that preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS is a “process” — not merely a one-time filing.  

Indeed, the distinction is important to note, because that is precisely why the entire administrative procedure of having an Initial Stage, a Reconsideration Stage, then an appeal to the Merit Systems Protection Board, then further appeals, is available for all Federal and Postal employees.  As a “process”, while each stage is considered in a “de novo” fashion (meaning, looked at “anew” without consideration of the prior decision), the legal precedents and citations which one refers to in order to establish one’s eligibility and entitlement to Federal Disability Retirement benefits under FERS or CSRS provide the foundational justification, no matter what stage of the process one is at.  

Thus, a legal citation argued for at the Initial Stage is valid for the Reconsideration Stage; a precedential legal reference made and argued at the Reconsideration Stage is valid for the MSPB, and so on.  As such, legal arguments provide for a continuum of arguing for one’s entitlement to a benefit which the Office of Personnel Management must justify in any denial it renders.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Medical Disability Retirement: Content & Substance

Form, Content & Substance.  Form is the appearance and the general approach & methodology of a Federal Disability Retirement packet; Content is the essence of that which makes up the materials in the packet; and Substance (hopefully) is the “meat” of the packet itself.  Make sure that what is stated is substantive.

OPM Representatives have multiple cases.  From the perspective of the Federal Disability Retirement applicant, it is a singular case, because it is one’s own case, and the personal nature of such a case makes it of paramount importance.  From the perspective of the OPM Representative, however, it is one of multiple cases, and it is part of his or her job.  If one has to wade through a generous amount of fluff before getting to the content of the Federal Disability Retirement application, the energy expended may be a distraction from a serious review of the substantive content.

A descriptive narrative bridging the medical condition with the type of job one performs is a necessary component; but as between a concise short story and a novella, the former is to be preferred in preparing and filing a Federal Disability Retirement application under FERS & CSRS.

Sincerely,

Robert R. McGill, Esquire

 

Federal and Postal Disability Retirement: Argument, Persuasion & Logic

Filing an application for Federal Disability Retirement benefits under FERS or CSRS, either by a Postal employee or a non-Postal, Federal employee, is an administrative process which “requests” that a certain benefit be paid by the Federal Government.  In order to be approved, one must prove, by a preponderance of the evidence, that one has met the eligibility criteria that has been set forth through statute, regulation, and cases which have interpreted those statutes and regulations over the years.  Thus, like any other area of law, there is a large pool of legal issues which have arisen over the years.  Because of this, it is important to understand that a certain amount of argumentation, persuasion, and logical analysis and delineation must occur.  Many people are surprised when, after submitting the “paperwork” and attaching some medical documents to the application, that the Office of Personnel Management would deny the applicant’s submission, saying with surprise, “I thought it would be easy”.  In any area of law, administrative or otherwise, where the pool of issues has grown over many decades, there must be a level of argument, persuasion and logic which must be engaged.  The legal arena for being approved in a Federal Disability Retirement case for those under FERS or CSRS is no different.

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

CSRS & FERS Disability Retirement: The 80% Rule

I recently wrote an article on FedSmith.com concerning the legal process of filing for Federal Disability Retirement benefits under FERS or CSRS, and a reader posted a comment implying and suggesting a lack of understanding about a benefit which would allow for payment of 40% of the average of one’s highest three consecutive years, and in addition, to allow for that annuitant to make up to 80% of what the former federal position currently pays.

I beg to differ. The purpose of allowing an annuitant to potentially go out and earn additional compensation in the private sector are multi-fold: it allows for an individual to remain productive; he or she continues to contribute in the workforce and, as a consequence, pays taxes, FICA, etc.; the amount of 40% (after the first year) is an incentive to go out and do something else. Further, Federal Disability Retirement benefits are part of a compensation package offered to a Federal or Postal employee — it is part of the total employment package, and there is certainly nothing wrong with taking advantage of that employment benefit if and when the need arises. The truth is that most people don’t get anywhere near the 80% mark, but hover closer to the 40 – 50% mark, and together with the disability annuity, are able to make a decent living. All in all, the 80% rule is a smart and thoughtful incentive for those who are disabled.

Sincerely,

Robert R. McGill, Esquire