The Merit Systems Protection Board (known by its acronym, “MSPB”) is comprised of Administrative Law Judges who oversee a variety of Federal issues, including wrongful termination issues, suspensions, pay disputes, overpayment issues, etc., as well as issues concerning Federal Disability Retirement under FERS & CSRS. Upon being denied twice by the Office of Personnel Management (a denial at the Initial Application Stage; and then a second denial at the Reconsideration Stage), the applicant who has filed for Federal Disability Retirement benefits from OPM has thirty (30) days from the date of the Reconsideration Denial to file an appeal to the MSPB.
The information requested in order to file an MSPB appeal is fairly simple and uncomplicated. Other than some basic information concerning the applicant’s name, address, employment, agency for whom worked, etc., a denial letter from the Office of Personnel Management needs to be attached to the appeal. However, do not let the simplicity of submitting an appeal fool you – the MSPB process is one which is governed by the laws, statutes and regulations which encapsulate the entire FERS & CSRS Disability Retirement process. When you enter the arena of the MSPB, you enter into the legal arena governed by lawyers and judges.
Henceforth, from the MSPB onwards, every step of the way is based upon “the law”:
- At the MSPB level, you will have an Administrative Judge (AJ) listen to your case, and determine whether you have met the “burden of proof” by a “preponderance of the evidence”, as to eligibility and qualification under the laws governing Federal Disability Retirement benefits
- If you fail to meet the burden of proof, you will have the right to file an appeal either for a “Petition for Review” (a PFR) for the full Board before the MSPB to review the findings of the Administrative Judge (but be careful, because the review is limited as to whether the AJ committed an “error or law”, and new facts or evidence cannot be submitted except in limited circumstances) or
- You can “skip” the PFR and file an appeal to the United States Court of Appeals for the Federal Circuit. If you decide to file a Petition for Review and get denied again, you still have the right to file an appeal to the U.S. Court of Appeals for the Federal Circuit.
- IMPORTANT UPDATE: THERE IS PRESENTLY NO QUORUM OF JUDGES AT THE 3-JUDGE PANEL OF THE MSPB, RESULTING IN NO DECISIONS BEING MADE. AS SUCH, FILING A PETITION FOR FULL REVIEW WILL LIKELY SIT WITH NO ACTION FOR MANY MONTHS, IF NOT YEARS.
The MSPB is not a place to be unrepresented. It is a legal arena in which “the law” must be known, argued, and used effectively. While it is best not to find one’s self at the MSPB at all, and further, while it is advisable to have an attorney from the very start of the process of filing for Federal Disability Retirement benefits, the reality of the world is that a certain number of cases end up getting denied twice, and the MSPB is the final “arbiter” (other than the two additional appellate procedures listed herein) of an OPM Disability Retirement case. As such, it needs to be approached carefully, with planning, foresight, and knowledge of the laws governing Federal Disability Retirement issues.
Once an appeal is filed, three important events will occur:
(1) The Office of Personnel Management will provide a copy of their entire file on your Federal Disability Retirement application to the “Appellant” (the person having filed the appeal) and to his or her attorney. Receipt and review of the file is important, because it will reveal to the Administrative Judge what evidence was used by OPM in denying the application, and conversely, what further evidence might be needed to win the case.
(2) Date for Prehearing Submissions will be set. This is an important date, because a Prehearing Submission will include the list of witnesses who may be called; any additional documentation which may be submitted; and should outline any legal arguments to be made.
(3) The Hearing Date will be set. Federal Disability Retirement Hearings are telephonic. Normally, the Administrative Judge will set up a “Sprint Conference” call, especially if there will be more than 1 witness to testify. This is the time to place your evidence before the Administrative Judge.
Remember: The Merit Systems Protection Board is the final step in which to prove, by a preponderance of the evidence, that a Federal or Postal Worker is eligible and entitled to Federal Disability Retirement benefits under FERS or CSRS. While there are the two additional appellate stages already mentioned, those additional stages are merely for arguing “errors of law” made by an Administrative Judge. The MSPB Hearing is the time and place to prove your case.
Robert R. McGill, Esquire