OPM Disability Retirement: Selective Prosecution

The term itself implies a sense of unfairness.  But fairness often depends upon a viewpoint, and the methodology which is applied, or failed to be applied.

Thus, in a Federal Disability Retirement case, whether under FERS or CSRS, if the U.S. Office of Personnel Management selectively extrapolates from medical reports, without giving a thorough review and analysis of the submitted documentation, then one may validly allege that such selective “prosecution” of a case has been unfairly perpetrated.

If, on the other hand, one applies the identical concept to the Federal or Postal employee who is the applicant filing for Federal Disability Retirement, then one’s perspective may change. Because the Applicant (the Federal or Postal employee) has the burden to prove, by a preponderance of the evidence, that one is entitled and eligible for Federal Disability Retirement benefits, it is therefore proper that the Federal or Postal employee also has the “right” to selectively choose which medical conditions to identify, and to support those medical conditions with the appropriate medical documentation and proof.

One could allege that allowing for the Federal or Postal employee to choose which medical documentation to submit amounts to a selective prosecution of the case; but to make such an allegation misses the point.  It is not the act of selectivity; rather, the methodology and the underlying foundation, which determines the fairness or unfairness of the process.  Everyone has to make choices; how that choice is made, and why, makes all the difference.


Robert R. McGill, Esquire

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