Last Updated on February 16, 2011
A Federal or Postal employee who is filing for Federal Disability Retirement benefits under FERS or CSRS may also be undergoing concurrent disciplinary proceedings, or engaged in corollary grievances, EEO Complaints, or involved in a lawsuit in a separate forum, either in the Federal Circuit Courts or at the Merit Systems Protection Board.
In either event, the question often comes to the fore as to whether such collateral issues should be brought up in the Applicant’s Statement of Disability (SF 3112A) or perhaps in a legal memorandum or cover letter which argues the merits of the case, the legal basis for eligibility, etc. The answer to the question as to whether, how and where is one of discretionary choice, and there is never a singular answer.
A separate question to be asked of one’s self (with no obvious answer) is whether or not, if the applicant who is filing for Federal Disability Retirement benefits under FERS or CSRS does not bring up the fact of a collateral issue being litigated in a separate forum, will the Agency bring it up and discuss it in a way detrimental to the Applicant, and further, will the fact that the issues was not brought up make it appear as if the Applicant is somehow trying to hide the issue? As with all such hypotheticals, the answer to all of the above is: It all depends…
Often, not mentioning a potential “red flag” until and unless it becomes a red flag is the best approach. Sometimes, making a passing reference to the collateral issue may be appropriate. In all instances, unless a connection can be made between the collateral issue and the issues central to a Federal Disability Retirement application — the medical basis and the impact upon one’s medical inability to perform the essential elements of one’s job — it is normally best to leave it alone. In any case, such discretionary decisions should be made with the advice of an attorney.
Sincerely,
Robert R. McGill, Esquire