Postal and Federal Disability Retirement: Letting Go

In preparing, formulating and filing a Federal Disability Retirement under FERS or CSRS, it is often normal to have concurrent “cases” filed — an appeal to the Merit Systems Protection Board in response to an adverse action or termination by the Agency; an EEOC case proceeding against the Agency; and other judicial and quasi-judicial forums.

At some critical point, however, there comes a time when a decision must be made — a bifurcation, an “either/or”:  Either one wants to continue litigating to get one’s job back, or the preparation of the Federal Disability Retirement application under FERS or CSRS, as an admission that one is no longer able to perform one or more of the essential elements of one’s job, must proceed.  But not both.  

For the most part, concurrent judicial proceedings can continue without a conflict between the two.  Lawyers can talk out of both sides of the mouth, and beyond — sometimes out of three or four sides of the mouth.  It is well that an attorney’s mouth is circular and not triangular, thereby failing to restrict and contain how many sides there are.  

Given that, however, there often comes a time when a Federal or Postal employee cannot credibly state that the Agency had no right to terminate one’s employment, yet claim with the Office of Personnel Management that one can no longer perform one or more of the essential elements of one’s job.  

Indeed, as a practical matter, it is often a good negotiating point — of persuading the agency that the Federal or Postal employee will be willing to drop the adversarial proceedings in return for the Agency restating the basis of the removal, based upon one’s medical inability to perform the essential elements of one’s job.  Furthermore, it is often a pragmatic “health reason” — to let go of the adversarial proceedings, and allow for a Federal Disability Retirement application to get approved, so that one may begin the process of recuperating one’s health.  Just some thoughts.

Sincerely,

Robert R. McGill, Esquire

Medical Retirement Benefits for US Government Employees: The Issue of Discretion

A Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS may also be undergoing concurrent disciplinary proceedings, or engaged in corollary grievances, EEO Complaints, or involved in a lawsuit in a separate forum, either in the Federal Circuit Courts or at the Merit Systems Protection Board.  

In either event, the question often comes to the fore as to whether such collateral issues should be brought up in the Applicant’s Statement of Disability (SF 3112A) or perhaps in a legal memorandum or cover letter which argues the merits of the case, the legal basis for eligibility, etc.  The answer to the question as to whether, how and where is one of discretionary choice, and there is never a singular answer.  

A separate question to be asked of one’s self (with no obvious answer) is whether or not, if the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS does not bring up the fact of a collateral issue being litigated in a separate forum, will the Agency bring it up and discuss it in a way detrimental to the Applicant, and further, will the fact that the issues was not brought up make it appear as if the Applicant is somehow trying to hide the issue?  As with all such hypotheticals, the answer to all of the above is:  It all depends…  

Often, not mentioning a potential “red flag” until and unless it becomes a red flag is the best approach.  Sometimes, making a passing reference to the collateral issue may be appropriate.  In all instances, unless a connection can be made between the collateral issue and the issues central to a Federal Disability Retirement application — the medical basis and the impact upon one’s medical inability to perform the essential elements of one’s job — it is normally best to leave it alone.  In any case, such discretionary decisions should be made with the advice of an attorney.

Sincerely,

Robert R. McGill, Esquire

Federal and Postal Disability Retirement: Conflicts & Peripheral Issues

Man is the only animal who has more than one side on his mouth, and the lawyer is a special species of the animal who, unlike the limitation of the cat who only has nine lives, possesses an infinite number of geometric sides of a mouth.  Lawyers make concurrent and conflicting arguments all the time, but as long as the arguments are bifurcated and the issues kept separate and do not directly conflict or contradict, there is certainly nothing wrong with that.

In a Federal Disability Retirement case, if a Federal or Postal employee wants to pursue a collateral issue in another forum while concomitantly filing for Federal Disability Retirement benefits, there is normally no conflict or problem which arises.  But in the limited instance where a Federal or Postal employee is attempting to reverse a termination and regain a position, at some point in the process the two issues may come to a direct conflict.

Normally, however, the issue involves merely changing the underlying reasons which the Agency proposed for the termination, and it is a legitimate argument to litigate with the Agency to change the terms of the termination.

Sincerely,

Robert R. McGill, Esquire