Federal retirement pension for FERS & CSRS - second (and sometimes third) bite at Apple

There are certain time limits when filing a claim for federal retirement benefits for federal pension funds (FERS) or the civil service pension system (CSRS): (1) you must file within one year after separation from the Federal Service, and ( 2) Your medical condition should last at least 12 months. This does not mean that you have to wait twelve months after the onset of your medical condition and prevent you from performing one or more important elements of your work; rather, it simply means that the prognosis of your state of health is such that it is expected to last at least 12 months. Thus, a person diagnosed with multilevel disc degeneration or suffers from plantar fasciitis or chronic pain syndrome, unsuccessful reaction syndrome, chronic fatigue syndrome, fibromyalgia or mental disorders of major depression, anxiety, panic attacks, etc., or many other types of medical States not listed here do not have to wait 12 months or more before applying for federal disability pensions for FERS or CSRS. Rather, the medical condition should last at least twelve months.

Now, during these time limits, it is often asked if a federal or postal worker can apply for disability benefits more than once. In other words, what if a federal or postal worker once tries - and gets rejected by the Human Resources Administration. Can you try again? The answer, like most legal questions, is both yes and no.

Remember, first of all, that there are many stages to winning a federal requirement for retirement from a disability: you have the first or the initial stage of the application; if it is rejected, you can request a review (“Stage Two”); if you refuse again, you can appeal to the Council for the Protection of Merit (“MSPB Appeal”); if the Administrative Judge rejects your request to the MSPB, you can file a full review request with the MSPB Complete Council; and if the Full Board denies your claim, you can appeal to the US Court of Appeals for the Federal District. Thus, there are many “bites” in the apple.

Secondly, however, in those many “bites on an apple” there are some limitations. Consider the following scenario: A federal or postal employee submits an application for retirement for disability in January 2008. In May 2008, he was refused. In August 2008, an application was submitted for reconsideration, and it was again refused in August 2008. He appeals the Board of Merit Protection and the Administrative Judge denies his case in conclusion of December 2008. The complainant does not pursue any further appeals, but gives an opinion of the MSMB on this issue. Question: Can the same separate file submit a new application to Human Resources Management in January 2009, assuming that it has not yet been separated from the Federal Service for more than one year?

Answer: We must be careful. In the arena of law, there is a legal principle known as res judicata - which in fundamental terms simply means that an issue that was previously resolved by a court cannot be re-examined. In the example above, if the applicant submits a new requirement for the same time period of disability, there is a possibility that the Office of Human Resources Management will raise the legal principle of res judicata and try to prevent the applicant from granting him disability benefits. However, you can bypass the protection of res judicata if you can show two things: first, that the time period in question differs from the previous time period, and second, that the medical condition has deteriorated since the initial time period. It makes sense if you stop and think about it: For if the principle of res judicata is designed to stop people from re-trying the same problem over and over again, you must show not only that the second application was for another but later that the state of health was somehow “different” (worse) than what was shown for the first time.

And indeed, this is exactly what the Merit Protection Council accepted in the case of Luzy v. Human Resources Management, 106 M.S.P.R. 160 (2007), in which the Merit Protection Board decided that a complaint about caring for a disability following a refusal from the second application of the applicant for disability pensions was not excluded res judicata arising from the decision of the previous Board, where the second application was based for a different period of time than what was considered in the initial appeal and was based on evidence that could not have been raised in the previous appeal. Thus, if you are applying for a federal disability retirement application and checking it all the time at the MSPB hearing stage, you should be warned that your ability to record a subsequent application may be limited.

Now that the case of Lusi allows for a “second bite in an apple,” he obviously imposes some burdensome restrictions, and such limitations further cause other problems. For example: Could it be a wise step to think about re-submitting a new second application after rejecting during the revision stage, but before contacting MSPB? (Answer: In some cases, depending on the facts of the case, the answer is: “Yes”). If you drop the first case at the initial application stage or at the re-examination stage, does the principle of res judicata work? (Answer: No, but OPM will still have your file from the first case to which to refer, so it would be reasonable to approach the second record in a different way). If you are denied both at the initial stage and at the re-review stage, but before submitting an appeal to the Council of Merit Protection, you will leave the Federal Service for your medical inability to do your job - what should you do? Drop it and recover? Download MSPB application? (Answer: there are too many variables to answer this question, and each individual case must be decided on the basis of a unique set of circumstances). If you pass the case to the MSPB and receive a waiver from the administrative judge, what will be the second time to be done? (Any subsequent application must be within a different period of time than the first application, and any medical evidence must show that the deterioration of health in the subsequent period of time, unlike the first period of time, see Luzie here).

Applying for a federal disability pension as part of a FERS or CSRS is a complex process, and each step of the process must be carefully assessed not only at a specific stage, but also to create the next step and the next step. To think that you will “win” at any stage of the process, without thinking about the next stage, is to ignore your future, and this is a really stupid way.