Federal Disability Retirement: Is the MSPB the end of the line?

Federal employees who apply for disability retirement must advance their claim through several stages if OPM initially denies d disability retirement.

The first stage is the reconsideration stage, where the postal or federal employee asks OPM to reconsider its decision, presumably with additional evidence or argument why the federal disability retirement benefit should be granted.

If OPM continues to deny the postal worker or federal employee disability retirement, the next step is to file an MSPB appeal. An Administrative Judge of the MSPB will hold a hearing (if you ask for one) on the issue of whether or not the postal worker or federal employee is eligible for disability retirement.

If the MSPB Administrative Judge affirms or upholds the OPM denial of disability retirement to the federal or postal employee, then the next step is to file a Petition for Review with the Full Merit Systems Protection Board (MSPB). If the Administrative Judge has made certain types of errors in his or her decision, then the full MSPB may be able to reverse the AJ’s decision or remand it to the AJ for more discovery or development of the evidence.

That may be, practically speaking, the end of the road for the federal or postal employee who is seeking federal disability retirement. The next court of review after the Full MSPB is the Federal Circuit Court of Appeals in Washington, D.C.

In most appeals, the Fed Circuit can set aside the MSPB’s decision if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” [ Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Substantial evidence is not a high burden for the government].

In federal disability retirement cases, however, the Fed Circuit’s authority is limited by law. 5 U.S.C. § 8347(c) states that OPM‘s determinations as to federal disability retirement “are final and conclusive and are not subject to review” except by the MSPB. The Fed Circuit has no jurisdiction to review the “factual underpinnings” of disability retirement determinations; it can only correct “a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination.”

What does that mean as a practical matter for the postal worker or federal employee seeking federal disability retirement? Win your case at the lowest level you can. Provide sufficient medical documentation and (equally as important), sufficient evidence linking your condition and a deficiency in federal service (or inability to perform the essential functions of your current job) to the OPM at the initial stages. If you don’t convince OPM at the initial or reconsideration stages, then be sure you put on your best case before the MSPB Administrative Judge.

The federal employee or postal worker should consider hiring an attorney to assist with his or her application for federal disability retirement. I recommend that federal employees or postal workers invest some time in this search and consult with at least 2 attorneys or law firms that handle federal disability retirement matters.

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.

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

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