OPM Disability Retirement: Settlement of Collateral Lawsuits

Appearance versus reality has been an ongoing philosophical issue within the Western Classical Tradition for centuries; it involves the very essence of the culture and heritage of the West, beginning with the Pre-Socratics (e.g., Parmenides), and continuing with Plato, Aristotle…to Heidegger; and until the dawn of modern Philosophy, where linguistic hermeneutics began to prevail, constituted the dominant foundation of philosophical inquiry. How a thing is presented, or “looks”, as opposed to what a thing “really is”, or the “essence” of being, forms the fundamental philosophical inquiry.  

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 often the case that the Federal or Postal employee is involved in some collateral lawsuit or adversarial process — often directly with the agency itself, in an EEO forum, MSPB or U.S. District Court.  

Inevitably, settlement negotiations will often occur, and the issue of whether a Federal or Postal employee can be retroactively “separated” for his or her medical inability to perform one’s job may be offered.  How the settlement is formulated; what is stated in the settlement agreement; what promises are made, etc., are all important in order for such agreements to effectively assist in the Federal or Postal employee being able to obtain a Federal Disability Retirement annuity.  OPM objects to the Federal Retirement fund being used as a tool for settlement of collateral lawsuits.  

Any settlement agreement must not “look” like it is merely a carrot for enticement to medically retire.  The reality of the situation is important.  As always, we go back to our Western roots — appearance versus reality.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Leverage

The ability to negotiate an advantageous settlement of an issue is dependent not merely upon the possession of leverage, but upon the effective use of that leverage.  Such effective usage would require, first and foremost, a dual presentation:  First, recognition of the value of such leverage, and second, the ability to have the opposing party believe that the value is exponentially exaggerated.  Once these dual components are satisfied, one can be assured that a favorable settlement can be reached.

In preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, one often finds that the Federal or Postal employee is involved in multiple facets of collateral litigation or adverse actions with the Agency.  As part of a “global settlement” of legal issues, the agency will inevitably offer the Federal or Postal employee a “disability retirement”.  Yet, the first recognition of order which the Federal or Postal employee must address, is the fact that the agency is not the entity which can grant a Federal Disability Retirement.  Only the U.S. Office of Personnel Management can grant or deny a Federal Disability Retirement application to the Federal or Postal applicant.

Can the support of the agency help?  Yes — if formulated properly.  Be aware, however, as case-law supports OPM’s contention that settlements of collateral issues should not be used as a basis for obtaining the support of an agency in an application for Federal Disability Retirement.  A balancing act must be adopted.  And, as always, Federal Disability Retirement is first and foremost an issue of one’s medical condition.

Sincerely,

Robert R. McGill, Esquire