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