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When an employee applies for disability retirement under CSRS or FERS, one of the elements that the employee must show is that the Agency is unable to accommodate him or her.

In order to prove this element, the agency must review all vacant positions under its jurisdiction at the same grade or pay level and tenure in the commuting area to determine if the employee meets the minimum qualification standards for any vacant position. If there is a vacant position available that the employee can perform with the medical condition, the employee cannot be granted disability retirement.

Some Agencies will assign disabled employees to light duty or limited duty positions. The Merit Systems Protection Board (MSPB) has ruled, following Federal Circuit case law, that light duty positions are not vacant positions for the purposes of a disability retirement application. The leading case on this point is Bracy v. Office of Personnel Management, 236 F.3d 1356, 1360-1363 (Fed. Cir. 2001). In Bracy, the Federal Circuit found that holding that a “vacant position” cannot consist of a set of ungraded, unclassified duties that has been assigned on an ad hoc basis.

So, just because an Agency sticks you in a set of ad hoc duties without a position description does not disqualify you from disability retirement, although many uninformed Agency supervisors and HR Reps will advise you that it does disqualify you.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about disability retirement under FERS or CSRS, or OPM’s denial of your applications for benefits, contact an MSPB attorney at the Law Office of Eric L. Pines, PLLC, to schedule a telephone consultation.

The Law Office of Eric L. Pines represents Federal employees under FERS or CSRS in their applications for disability retirement to OPM. If your application for disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of disability retirement applications by OPM.

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Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.

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