Last Updated on June 7, 2009 by Federal Disability Lawyer
It is important to always “define”, “corner”, and “circumscribe” any denial from the Office of Personnel Management. If you do not, then what happens at the next level is that it becomes a “de novo” process. Now, one might argue that all disability retirement appeals to the Merit Systems Protection Board are de novo, anyway. That is true enough — meaning, that all of the evidence is looked at “anew” and without prejudice from any previous finding by the Office of Personnel Management.
Yet, there is the “legal” definition of de novo, and the practical effect of de novo; often, the Administrative Judge at the MSPB will, at a PreHearing Conference, turn to OPM and say, Listen, OPM, it seems that the only reason why it was initially denied was because of X, Y & Z; the applicant certainly answered X & Y in his/her reconsideration answer; is the only thing you are looking for is Z? What this does is to narrow the issue. Often, to save time, face, aggravation and other things, OPM will concede the narrowing of such issues, and this is true if you respond to their administrative queries by defining what they are asking for, then providing it to them, then showing how it has been provided to them, so that they are “cornered”. Thereafter, if it gets denied and it needs to go to the MSPB, the Hearing can then proceed with a narrower, streamlined and limited number of issues to prove. Again, the reason why it is important to define what it is that OPM is asking for, is not only for the “present” case, but in preparation for the potential “future” case.
Robert R. McGill, Esquire