OPM Disability Retirement: A breach of instinct

Robert R. McGill's Administrative Law Legal Blogs

Licensed for 29 years

Attorney in Walkersville, MD

Robert R. McGill

Serving Walkersville, MD

Principal at firm Robert R. McGill

Serving Walkersville, MD

     What if?  What if that fragile balance that exists in nature, seen when squirrels scrounge about in search of roots and nuts, moving within the tranquil space besides cardinals, woodpeckers, rabbits and robins abounding when, suddenly, birds attack the rabbits and squirrels, and in turn, the rabbits and squirrels chase one another and attempt to catch and devour the birds, and the mayhem that follows goes on for an unceasing eternity.  Of course, such a scene is not “nature” in its nakedness, but a scene from a suburban backyard, whereas in the true “state of nature”, in the distant woodlands not easily traversed by the human eye (are there such places, anymore?), such scenes of predatory confrontation held by a tentative and tacit agreement of abeyance may occur daily.  Or, in those National Geographic scenes, where there is a quietude of implied ceasefire in birds standing atop the backs of rhinos and hippos pecking away calmly at whatever delectable insects abound, and their sturdy underlings happily go about their business – what if, suddenly, the hippo or rhino turns around and with a swift lunge of its massive neck, grabs that bird and devours it whole?  Was there a breach of an implied or tacit agreement, a breach of instinct, or both?  When such “agreements” develop within a slow, steady and evolutionary process, over a period of time imperceptible but for the peace and tranquility it creates, and everyone is perfectly content with the circumstances ensconced by tradition and the state of current affairs, what leads to the breach, what are the consequences and is there blame to be spread about?  What if a rogue animal one day just declares to itself, “The hell with this; I was never a party to this agreement, and so I shall do as I please” – what then?  Is it not true that no true “breach” has been committed, as the parties were never official signatories to the agreement, explicit, implicit, tacit or otherwise?  Who determines that there ever existed such an agreement, anyway, and where is it written in the “rules of order” that certain sequence of decorum must be followed?  That is, of course, the crux of the matter; for, what is the retort of those who have no ethical or moral compass, but to sneer with the declarative, “Show me where it is written!”  For Federal employees and U.S. Postal workers who are preparing to file for Federal Disability Retirement benefits because of a medical condition that prevents the Federal or Postal employee from performing one or more of the essential elements of the Federal or Postal job, the presumption is that tacit or implied standards of conduct is often tested at the outset, both by the Federal agency or Postal Service, and even by OPM.  You rely upon the rules, but the Agency may completely ignore them.  If you are a Postal employee, this is to be expected.  Yes, there are laws, but so long as silence governs the assertion of rights denied, a breach of instinct becomes the rule of law and the depiction by Locke and Rousseau of that “State of Nature” devolving into a “State of War” can become a contentious state of affairs unless, in the very process of preparing, formulating and filing for Federal Disability Retirement benefits, the Federal or Postal Disability Retirement applicant asserts the legal precedents controlling and constraining the fragile balance that restrains a breach of instinct. 

Sincerely, Robert R. McGill, Esquire

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