FERS Disability Retirement from the OPM: Arguing with the Necessary Tools

Preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management requires, first and foremost, a sophisticated understanding and insight into the entirety of the Federal Administrative Process. Whether it is the procedural rules and regulations governing all Federal Disability Retirement applications — that all Disability Retirement applications, whether under FERS or CSRS, must be submitted through one’s agency if still employed, or within thirty one (31) days of being separated from Federal Service; if separated for more than thirty one days (31+), then directly to the Office of Personnel Management; and, further, that a Federal Disability Retirement application must be filed within one year of being separated from Federal Service; or substantive – that one must have a minimum of 18 months of Federal Service for FERS employees, and 5 years for CSRS employees; such knowledge merely represents a mere fraction of what is needed to obtain a successful outcome in a Federal Disability Retirement case.

Next, of course, is the issue of whether the Federal or Postal employee meets all of the legal criteria in order to successfully obtain an approval from the U.S. Office of Personnel Management. Beyond the procedural and prefatory substantive requirements, the ultimate questions of whether or not the Federal or Postal employee can sufficiently prove, by a preponderance of the evidence, that one can no longer perform one or more of the essential elements of one’s job; whether the medical documentation satisfies the legal criteria expounded; and whether the Federal agency or the U.S. Postal Service is able to accommodate a person’s medical disability – these questions begin to scratch the surface of the inherent complexities of a Federal Disability Retirement application.

Beyond the mere basics of a Federal Disability Retirement application, the next level of sophistication is the inclusion of legal arguments. Some may contend that, inasmuch as filing for Federal Disability Retirement benefits does not require that a Federal or Postal employee have legal representation, therefore legal arguments are unnecessary. Yet, if one looks at a denial letter issued by the U.S. Office of Personnel Management, that is precisely what they do – they quote from the statutory criteria and argue that you have “not met the legal criteria” in order to be eligible for Federal Disability Retirement benefits. If the adversary is ready to cite a legal basis for a denial, then it should be self-evident that legal arguments should be utilized as one tool among others in an application for Federal Disability Retirement benefits.

Since the criteria to be eligible for Federal Disability Retirement benefits is based upon statutes and legal case laws, it only makes logical sense that arguing for the sufficiency of the law in one’s own Federal Disability Retirement application would be necessary. Lawyers use a variety of tools in representing clients, and are trained in the essence of linguistic gymnastics, to win cases. For example, argument by analogy is a methodology of argumentation used by attorneys to further the relevance of a case. It is an inductive argument where the impact of a legal point, holding, or dicta can be applied in a different area of law by identifying the similarities – whether in statute or regulatory underpinnings; in the facts; or a hybrid of both – and arguing that since X is Y, and X is similar to Z; therefore, Y must be similar to Z.

Lawyers are trained to argue by analogy. Much of lawyerly argumentation is defined by the methodology of assuming a given hypothetical, and adding or subtracting relevant factual constructs and arguing for similarities or differences. Non-lawyers who attempt to engage in such argumentation often fail because of a lack of practice; it has nothing to do with intelligence or ability; rather, it has everything to do with the Aristotelian approach of any practical activity — that practice and habit lead to excellence in any endeavor, and lawyers engage in the practice of analogical argument on a daily basis, and rise or fall in reputation depending upon the effective use and application of legal and factual analogies which persuasively enliven the otherwise mundane procedural quietude of a courtroom.

The question of persuasive argumentation, of course, goes to the very heart of any effective legal presentation. In preparing a Federal Disability Retirement application to be submitted to the U.S. Office of Personnel Management, one may inquire whether a sophisticated legal argumentation by analogy should be applied at the outset of a case, when the Initial Stage of the application process, as well as the Second Stage of the process – the “Request for Reconsideration” Stage — are merely reviewed and evaluated by Disability Retirement “Specialists” of a non-lawyer background. But as each stage of an administrative process must, and should be, used as a building block for a subsequent stage, so the effective preparation of a case should always have in its target-point an assumed presentation before an Administrative Judge – almost presumably a lawyer – at the U.S. Merit Systems Protection Board.

Thus, whether or not the Applicant’s Statement of Disability, along with the medical documentation accompanying the application, were enough to obtain an approval of a Federal Disability Retirement application from the U.S. Office of Personnel Management; or, whether the legal citations presented, the analogical arguments conveyed, assisted in moving the application from one of doubtful skepticism to a conceded approval, will never be established with certitude. But what is clear is that, by ascertaining a solid foundation based upon the facts of the case, the supporting exhibits (i.e., medical documentation), persuasive legal argumentation by analogy (where applicable), and by identifying how each of the elements in a Federal Disability Retirement application have satisfied the applicable legal criteria, and the burden of proof having been satisfied, the composite of the collective strands of proof needed in a Federal Disability Retirement application, will stand a greater chance of success at each stage of the Administrative process. Using all of the tools available is an important part of the process, and legal argumentation is merely one of the many essential tools necessary to win an approval in a Federal Disability Retirement case.

I am a FERS Disability 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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