Posted on November 08, 2011 in Administrative Law
In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to distinguish between laws, facts, and persuasive argumentation, as well as the targeted audience to whom such distinguishing elements are being conveyed. For the first two "stages" of the administrative process, the Federal or Postal employee will be addressing personnel at the U.S. Office of Personnel Management. This is merely at the "administrative", or "agency" level of the process. Thus, the initial review, analysis, and application of the legal criteria will be performed by a non-lawyer, and any application of a legal criteria to determine the eligibility of the Federal Disability Retirement application will be done in a rather mechanical manner. By "mechanical manner" is merely meant that the criteria to be applied is merely an extrapolated generic form of interpretation, and will be applied by comparing the "list" of legal criteria against the submission of the Federal or Postal employee. Whether there is sufficient justification in the medical report and records; whether the description of the Federal or Postal employee’s job comports with the official position description; whether the agency has offered an "accommodation", and if so, in what form; whether a reassignment to another position at the same pay or grade was offered and declined — and other applicable criteria will be applied, analyzed and annotated by the OPM Representative. If the Federal Disability Retirement application is denied at this initial stage of the process, then it will again be reviewed at the Reconsideration Stage of the process — assuming that the Federal or Postal employee files a timely Request for Reconsideration with the Office of Personnel Management. It is at the next stage of the administrative process — an appeal to the Merit Systems Protection Board — that any legal argument will ultimately begin to carry significant and relevant weight. For, at the MSPB, an Administrative Judge will review the entire file, and proceed to conduct an administrative hearing "de novo", or "fresh" or "anew", and weigh the evidence, the legal arguments, and determine the persuasive impact of either or both.
Sincerely, Robert R. McGill, Esquire
In preparing, formulating and filing a Federal Disability Retirement application under FERS or CSRS, it is important to distinguish between laws, facts, and persuasive argumentation, as well as the targeted audience to whom