Robert R. McGill, Esquire

The fox is known as a sly and clever animal, and no more so than when he disguised himself as the gatekeeper of the Farmer's vast plantation.  As traveling field mice and similar rodents came upon the entrance to inquire about the abundance of the Farmer's accommodations and produce, the Fox would direct them down a dark and narrow ravine which ended in a dead-end with no escape.  "Once there, wait until I arrive.  I shall guide you to the riches of the plantation through a secret entrance."  Now, one need not imagine very far or wide as to what happened to all who were gullible enough to believe such information; the fate of all who believed was sealed to the satisfaction of the fox's appetite.  Thus, the fox merely confirmed its reputation for cleverness and slyness.  But as to any reputation of integrity, that is another matter altogether.

    -  from Fables Long Forgotten

Arguing "the law" in any forum, whether in criminal, civil or administrative law, requires a self-correcting boundary of integrity.  For attorneys arguing the law, the self-correcting forces often are both internal and external:  internal, in that attorneys (hopefully) retain a sense of pride within the profession and do not intentionally attempt to mislead or engage in intellectually disingenuous and deceptive arguments; and external, in that one's colleagues would point out any spurious or imprecise legal citations and arguments.  There is, of course, the further external constraint of judges admonishing or, in extreme circumstances, sanctioning a lawyer for deliberately mis-citing a legal opinion or misleading the court.

In the arena of administrative law, and specifically federal disability retirement law, which is the specialty which I practice, there is the added temptation -- both for non-lawyers and lawyers alike -- to loosely argue legal principles to representatives at the Office of Personnel Management (OPM) who are not lawyers to begin with.  As more and more information is shared via the Internet -- where the full opinion of cases are posted online within a few hours after being issued by any and all courts -- people who file for benefits have access to legal citations.  The danger of the layman making legal arguments based upon an untrained reading of a legal opinion is fairly obvious.  The greater question, of course, is the extent to which lawyers go in making legal arguments to non-lawyers at the agency level.

Take for instance the following scenario: 

A federal or postal employee under FERS files a federal disability retirement application with the Office of Personnel Management.  While the application is still pending at OPM, his Social Security disability application gets approved.  While this rarely happens, it occurs often enough:  or, if the application is taken through the Second, Reconsideration Stage of the process, or the Third Stage, at the Merit Systems Protection Board (MSPB)--- the longer the process, the greater the chance that the Social Security filing may get approved.  Now, under the requirements of filing for federal disability retirement benefits for those under the Federal Employees Retirement Systems (FERS), one must file for Social Security disability benefits.  This is because Congress wanted a coordination of benefits in the event that a federal or postal employee was found to be entitled to both Social Security disability benefits as well as federal disability retirement benefits from the Office of Personnel Management.  The "coordination of benefits" is not a total offset in all years -- just the first year of the dual eligibility. 

Thus, in the first year that a federal or postal employee is eligible for both Social Security disability benefits and OPM disability retirement benefits under FERS, there is a 100% offset; in all subsequent years up until age 62, there is a 60% offset of benefits.

Now, under the scenario as delineated above, the standard legal argument to be made is as follows: 

In Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed.Cir. 1995), the federal circuit court found that in making a determination of eligibility for disability retirement under FERS, the Board (and therefore the Office of Personnel Management) must consider an award of SSA disability benefits together with medical evidence provided by the appellant to OPM, and other evidence of disability.  This is especially the case if the identical medical evidence was submitted to the Social Security Administration, as that submitted to the Office of Personnel Management.  And, since Social Security requires a higher "standard of proof" of proving "total disability", it follows that such finding of "total disability" should have persuasive influence upon the Office of Personnel Management in making a determination of disability.  Thus was the reasoning of the Court in Trevan. 

What if, however, the same Applicant under FERS obtained a disability rating from the Department of Veterans Affairs --- say, a high enough single rating (as opposed to multiple ratings which, together, comprise a combined higher rating), such as 70 --- 100% for a single medical condition, and that medical condition is the same condition as that which is the basis for the Federal Disability Retirement application under FERS.  In such a scenario, can Trevan be used as persuasive case-law authority?  Strictly speaking, one might argue that, inasmuch as Trevan was specifically referring to a Social Security disability approval as persuasive authority in an OPM disability retirement case, that a legal argument involving a Veterans Administration disability rating has no applicability or significance to Trevan. 

I would disagree.  As an attorney, I believe that there are underlying legal principles which are inherent and implicit in all legal opinions.  If, for instance, we view the case of Trevan v. OPM as a case in which the federal circuit court recognized the logical principle where, if a higher standard of proof is met, it should therefore meet all lesser standards of proof, then we can extrapolate its significance.  In this light, to be declared by the Social Security Administration that you are "totally disabled", should therefore logically mean that a lesser standard of "disabled from one or more of the essential elements of one's job" will have automatically been met.  Or, just based on a pure "fairness" standard, one could argue that it would be inconsistent for one Federal Agency (the Social Security Administration) to declare one to be "totally disabled", and yet have another Federal Agency (the Office of Personnel Management) to essentially state that, while federal employee X is "totally disabled", yet that same federal employee X is not disabled from performing one or more of the essential elements of one's job.

Thus, by extrapolating the inherent or implicit underlying legal principles, I believe that it maintains the "integrity of the law" to argue and cite Trevan v. OPM as a relevant judicial opinion involving a Veterans Administration rating --- and to submit the VA rating decision to the Office of Personnel Management while citing Trevan as upholding the underlying legal principles.  Such an argument, however, is best made by lawyers; for, again, if the lawyer makes the argument, one would like to think that both the internal and external constraints will contain such arguments from going too far; whereas, if a non-lawyer engages in such arguments, there is the added danger of misinterpreting the significance of a case like Trevan --- and going beyond the boundaries of intellectual integrity.

Federal disability retirement law, for federal or postal employees under FERS or CSRS, is governed by a body of statutes, case-laws, and agency regulations which comprise a governing authority in determining whether an Applicant is eligible and entitled to such benefits.  Ultimately, in attempting to qualify for such benefits, any federal or postal employee who files an application for federal disability retirement benefits should utilize the full arsenal of legal authority when attempting to qualify for such benefits.  This article is meant to aid in that process, by showing one methodology used in law, to the advantage of the applicant.
    
About the Author

Robert R. McGill is an attorney who specializes in federal disability retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his CSRS and FERS Disability Retirement Website

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·  Federal Disability Retirement Under FERS & CSRS: The Approach ·  Federal Employee Disability Retirement Benefits for FERS & CSRS

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