A denial of a Federal Disability Retirement application under FERS or CSRS from the Office of Personnel Management always leaves the applicant and his or her attorney at a disadvantage. This is because OPM is never answerable to any resulting consequence of a denial; at least, not directly. Think about it this way: In the initial application, if an OPM Disability Retirement application is properly prepared and submitted according to, and within the parameters of the laws governing Federal Disability Retirement, one would assume that it should be approved. If it is denied, then the case is sent to the “Reconsideration” division of OPM — meaning, to another person.
Now, taking it out of the hands of one OPM Representative into the hands of another, has both the good and the bad mixed together: the good is that it will now be reviewed afresh by someone else; the bad is that the person who denied the original application has no further responsibility for the denial. This is true, incidentally, with respect to the Reconsideration Stage of the process; if a second denial is issued, the person who issues the second denial also has no responsibility to answer for the basis given in the denial.
The “light at the end of the tunnel“, however, comes when it is finally taken up by an Administrative Judge at the Merit Systems Protection Board. While the AJ cannot hold anyone at OPM responsible for a denial which never should have been, at the very least, when the AJ reviews the record and finds that the previous denials were unfounded or rationally without legal foundation, an immediate recognition of a baseless denial can help the applicant. Ultimately, rationality and legal integrity has a chance to prevail; it sometimes takes more than one bite at the apple.
Robert R. McGill, Esquire