An appeal to the Merit Systems Protection Board in a Federal Disability Retirement case means that the disability retirement application has been denied twice by the Office of Personnel Management: at the initial application stage, then at the Reconsideration Stage. This is often considered to be the third and last try — of convincing an administrative judge (an “AJ”) that you are entitled and eligible for disability retirement. There are, of course, two additional stages — an appeal to the Full Board and to the Federal Circuit Court — but such avenues present only the right to reverse a decision of the Merit Systems Protection Board, and no new evidence can be presented.
Thus, one might consider the Merit Systems Protection Board as the “last stop” in the administrative process. Do not think, however, that the process must necessarily be won before the Administrative Judge in a hearing — much work and persuasive argumentation should be made to the OPM representative who is handling the case at this MSPB Stage. The OPM representative at the Third Stage of the process is usually an attorney; they are competent; they are versed in the case-law — and thus open to be persuaded by legal argumentation. While the administrative stages (the Initial Stage and the Reconsideration Stage) involved OPM representatives who are non-attorneys, the MSPB Stage involves seasoned attorneys who present an opportunity for persuasion and argumentation, and thus a golden opportunity to convince OPM to reverse their own decision before coming to a Hearing. Such an opportunity should never be missed, and every effort should be made by the applicant’s attorney to have multiple contacts with the OPM representative prior to the date of the Hearing.
Robert R. McGill, Esquire