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
OPM Disability Retirement, Et Cetera… 