OPM Disability Retirement: Power, Persuasion and the Legal Argument

FERS & CSRS Disability retirement is no different, in kind, than other areas of law which intersect with individuals and personalities.  As an area of administrative law, and specifically, where a government entity (the U.S. Office of Personnel Management) is involved, the Federal or Postal worker must encounter an agency which is large, powerful, and often immovable (sort of like Aristotle’s Primum movens, or the Prime Mover).  

The singular Federal or Postal worker may find the encounter with the Federal government to be a daunting, almost insurmountable task.  It is the classic meeting of two unequal forces; and, as such, there is always a question as to who will prevail.  

Fortunately, however, there are some mechanisms in place which allow for persuasive argumentation.  If a Federal Disability Retirement application is denied at the First Stage of the administrative process, then there is the Second, or Reconsideration Stage of the process, which places the disability retirement application in the hands of a different OPM case worker, in a different section.  If it gets rejected a second time, then it is taken entirely out of the hands of OPM, and will be placed before an Administrative Judge at the Merit Systems Protection Board.

Throughout the entire process, however, the Federal or Postal worker may feel lonely, small and irrelevant.  That is why the Federal or Postal worker who is contemplating filing for Federal Disability Retirement must engage in substantive and persuasive legal argumentation.  Persuasion is the key where power is unavailable.  It is OPM which has the power; it is the Federal or Postal Worker who has the persuasive tools, and must use them to his or her advantage as the law allows.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: Overwhelming Resources of the Bureaucracy

The advantage which the U.S. Office of Personnel Management has over the individual Federal or Postal disability applicant in a Federal Disability Retirement application is self-evident:  they control the timeframe of the decision; they are not subject to any repercussions or consequences for a decision contrary to law; they possess multiple templates in disapproving a Federal Disability Retirement application, and a single template upon approving a Federal Disability Retirement case, thereby making it administratively easy, simple, and without the necessity of expending much effort, either way.

For the Federal or Postal employee who is contemplating preparing, formulating or filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, whether under FERS or CSRS, it is a daunting task to go up against such a behemoth of a Federal administrative bureaucracy.

Indeed, one only needs to review a denial letter from the U.S. Office of Personnel Management to comprehend the near-impossible obstacle which OPM can present:  in some denials, there is merely a brusque and short “discussion”, barely touching upon providing any rational reason for a denial; yet, in other denials, there are long and detailed templates — however erroneous or misplaced, and however lacking of any legal or factual basis — which purportedly “explains” the legal basis of the denial.  In either case, OPM has the “upper hand”, at least for that time and stage, because it is merely kicked-up to the next Stage in the process, and handed over to another OPM employee.

Against such an entity, it is important to be prepared with knowledge, legal tools, and the ability to cut through the administrative nonsense which passes for legal authority.

Sincerely,

Robert R. McGill, Esquire