The Bruner Presumption Today: Extension by Logical Implication

— Beware the ides of March, not for what it portends before the halfway mark, but for what occurs the day after.

— From Turbulence of Shakespeare, Fifth Portfolio

Adverse actions, administrative procedures of implementing increased pressure for greater productivity and, in the process, to enhance the efficiency of the Federal Service; PIP actions; leave restriction memos; refusing to grant LWOP beyond the allowance under FMLA; placing individuals who have exhausted all Sick Leave, Annual Leave and FMLA on AWOL status; these are some of the “big stick” pressures in the seemingly infinite arsenal of weapons, and more, at the discretionary use of every Federal Agency.  Then, of course, there is the “stick” of finality – of a removal action.  What, then, is left for the Federal employee? Recourse of reactive measures? The right to file an appeal, and to fight such administrative sanctions and actions, and in the process, to incur legal bills or, worse yet, to represent one’s self pro se?

Fortunately, the law often has a life of its own, which – whether through small steps of incremental advances, or through large precedent-setting upheavals (or reversals of previously errant and rogue decisions) which can expand the small but effective arsenal of legal recourse for the “little guy”.

Specifically, in the case of a Federal employee or the U.S. Postal Service worker who suffers from a medical condition, such that the medical condition begins to reflect adversely upon one’s work performance, the right to file for Federal Disability Retirement is often not just the “last recourse”, but a positive, affirmative decision to utilize a benefit strongly ensconced in the law.  Further, where a medical condition develops, and is the foundational basis for the deterioration of work performance (and thus, from the agency’s side of things, a potential basis to initiate one of those “big stick” measures from the vast arsenal of procedural and substantive measures to punish, put down and pity the poor, putative patron of the Federal system), a removal action is often initiated.  How the removal is formulated; what specificity of verbiage is delineated; what language is contained within the body of the proposed removal and the decision for removal – these are all relevant considerations in reviewing the “non-adversarial administrative procedure” of a removal based upon one’s medical inability to perform one or more of the essential elements of one’s job.

In the final measure of things, that which is explicitly stated is always preferable to mere implicit inference.  For, it is well-established law that an employee’s removal – when clearly stated in the proposal for removal and the finalized decision to remove — for his or her medical inability to perform the essential functions of the job or position, constitutes prima facie evidence that the Federal or Postal employee is entitled to disability retirement as a matter of law, and that the burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits.  See Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998). The burden-shifting legal trigger is unequivocally invoked with an explicit clarity of acceptable language.

But the law always has room for expansion and logical extension, and in subsequent cases moving beyond the peripheral constraints initially decided in what is now familiarly known as the “Bruner Presumption”, the Merit Systems Protection Board went further and held that the Bruner Presumption also applies where “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002).  In other words, the cases have allowed for the lack of explicitly-stated removal actions to expand and include inferential, implicitly-stated actions to “trigger” the Bruner Presumption. “Suggestion” of actions by an agency can be interpreted as equivalency of intent.

But what if neither exists – neither an explicit statement of removal of a Federal or Postal employee based upon one’s “medical inability to perform one or more of the essential elements of the job”, nor an implicit recognition of a removal based upon references and delineation encapsulating factors that indicate acknowledgment of medical reasons and rationale for such a removal action? How far will the Courts go in allowing for the invoking of the Bruner Presumption? Obviously, some amount of evidentiary context which triggers the applicability of the Bruner principles must exist, and some rational basis must be discovered and delineated in order to justify the invocation of the Bruner Presumption, but the question has always been, under what circumstances, and how far? According to a recent decision handed down by the U.S. Merit Systems Protection Board, in a precedent-setting case (and all the more laudable because the case was defended against the U.S. Office of Personnel Management by a pro se litigant, which goes to show that non-lawyers as well can expand the linguistic malleability of the law in effective and astounding ways) revealing fairly ordinary circumstances, so long as there is a logical and rational basis, quite far.

Indeed, the recently decided case of Angel v. OPM, Docket #CH-844E-14-0283-I-1, decided on April 15, 2015, is instructive on the logical extension of a rationally-based principle.  In that case, the agency did not remove the Appellant based upon her medical inability to perform the essential functions of her job, and indeed, there was no SF 50 establishing that.  Instead, the contextual surroundings were enough to trigger the Bruner Presumption – the fact that the agency had stated that it could not permanently accommodate the employee; further, that the agency could not identify a suitable position for reassignment; and finally, with the Appellant’s own testimony that she had been “notified” that she would be removed from her position “for her inability to report to duty on a full-time basis” – these alone were sufficient to invoke the Bruner Presumption.  Indeed, as the Full MSPB Board observed, the Hearing Judge “appropriately analyzed the record evidence and found no evidence that the appellant was separated for reasons other than the reduction in her schedule, which was attributable” to her medical conditions.  In the absence of any contradictory evidence, “we agree with the administrative judge’s finding that this is sufficient evidence to meet the preponderance of the evidence standard and apply the Bruner presumption.”

For those who overlooked the significance of this case, and the relevant impact because of the understated delineation by the MSPB, it needs to be noted and emphasized, because this case is somewhat like a firecracker going off in the middle of a large-scale bombing raid during the Allied bombing of Dresden; it can easily go unnoticed.  This is a case where no paperwork was introduced as evidence showing that the Federal Disability Retirement applicant was removed for her medical inability to perform her job, and indeed, even the Applicant/Appellant’s own testimony did not make a claim of having been removed for her medical inability to perform her job functions; instead, she simply testified to the fact that she was notified that she would be removed because of her “inability to report to duty on a full-time basis”.  Despite the lack of any evidentiary explicitness or even any implicit basis (i.e., such evidence like concurrent documents showing that a person had made the agency aware of medical conditions during the process of administrative removal, etc.), the totality of the evidence was enough to trigger the Bruner Presumption by way of a logical process of elimination: The agency was unable to provide an accommodation; the agency could not find a suitable reassignment; such efforts on the part of the agency clearly showed that they were fully aware of the medical condition of the Appellant; ergo, despite the lack of explicit evidentiary documentation triggering the Bruner Presumption, it was instead the lack of contradictory evidence which allowed for the Administrative Judge at the Hearing level to find that the Bruner Presumption applied, with the Appellate Board of the MSPB affirming such a finding.

As a “side note” – OPM could have, of course, submitted evidence contradicting the Appellant’s assertions and subsequent resulting applicability of the Bruner Presumption, by contacting her former agency, obtaining an affidavit from the Human Resource Office, getting a copy of the SF 50 showing contrary evidence, etc., if in fact there was in existence any such countervailing evidence.  But there was obviously no such contradicting evidence.  Despite such lack of evidence, OPM decided to file a Petition for Full Review of this case.  Sometimes, discretion is the greater part of valor, and it is a good lesson to learn: in attempting to win a battle, make sure that you don’t lose the greater war.  In law, if you appeal a case, there is the danger that your appeal will result in a legal precedence of somewhat earth-shattering residue.  In this case, we can thank the U.S. Office of Personnel Management for appealing the decision rendered by the Administrative Judge at the Hearing level, and thus establishing a wide-ranging precedent of a previously-murky area of law involving the Bruner Presumption: how far will the MSPB go in invoking the Bruner Presumption? As it turns out, quite far, and thank you, OPM, for concretizing what was previously an unknown boundary of legal marshland.

I am a FERS Disability Retirement Attorney who represents Federal and Postal workers from all across the United States, including Alaska, Hawaii and Puerto Rico.  I do not charge for an initial telephone consultation; thus, if you believe that you need to consult an attorney concerning Federal Disability Retirement, please contact me in one of these ways:


Robert R. McGill, Esquire


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