Retirement Law Blog

By Kimberly H. Berry, Esq., www.berrylegal.com 

We often receive questions from federal employees about Voluntary Separation Incentive Payment (VSIP) programs.  A VSIP, also commonly known as a buyout, is a lump-sum payment of up to $25,000 that is offered to eligible federal employees as an incentive to voluntarily separate by resignation, optional retirement, or early retirement.  When a federal agency is downsizing or restructuring, it may offer a VSIP to eligible employees who are no longer needed in the workforce. Federal employees who are offered a VSIP must meet general eligibility requirements in order to take advance of these provisions.  

VSIP Eligibility Requirements

The federal employee involved must:

(1) Be serving in an appointment without time limit;

(2) Be currently employed by the Executive Branch of the federal government for a continuous period of at least three (3) years;

(3) Be serving in a position covered by an agency VSIP plan; and

(4) Apply for and receive approval for a VSIP from the agency making the VSIP offer.

Federal employees in the following types of categories are generally not eligible for VSIP.  These include federal employees who:

Are reemployed annuitants; Have a disability such that the individual is or would be eligible for disability retirement; Have received a decision notice of involuntary separation for misconduct or poor performance; Previously received any VSIP from the federal government; During the 36-month period preceding the date of separation, performed service for which a student loan repayment benefit was paid or is to be paid;

During the 24-month period preceding the date of separation, performed service for which a recruitment or relocation incentive was paid or is to be paid; and During the 12-month period preceding the date of separation, performed service for which a retention incentive was paid or is to be paid.

Return to Federal Service After VSIP

If a federal employee receives a VSIP and later accepts employment for compensation with the federal government of the United States—other than the General Accounting Office, the U.S. Postal Service, or the Postal Rate Commission—within five (5) years of the date of the separation on which the VSIP is based, including any work under a personal service contract, the employee must repay the entire amount of the VSIP to the paying agency before his or her first day of reemployment.

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It is very important for federal employees considering VSIP as an option to obtain legal advice from an attorney regarding the VSIP process prior to making final decisions concerning their federal employment or reemployment. Berry & Berry, PLLC represents and advises federal employees nationwide and abroad before their individual federal agencies, the Office of Personnel Management (OPM), and the Merit Systems Protection Board (MSPB) in regard to issues arising under the Voluntary Separation Incentive Payment (VSIP).  If you need legal assistance or advice regarding VSIP payments, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. 

By Kimberly H. Berry, Esq., www.berrylegal.com

Unfortunately, many federal employees develop serious medical conditions during their career that make them unable to perform the duties of their position and make it important for them to consider filing for disability retirement through the Office of Personnel Management (OPM).  This article discusses these issues.

By Kimberly H. Berry, Esq., www.berrylegal.com

Federal employees filing for disability retirement are covered by either the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS). One of the key components of a federal employee’s successful disability retirement application before OPM is the physician’s statement.  This article discusses some helpful guidance when obtaining a physician's statement.  

Physician’s Statements in OPM Disability Retirement Applications

When seeking disability retirement, a federal employee should present a well-written physician’s statement.  When evaluating a federal employee’s disability retirement application, the Office of Personnel Management (OPM) primarily seeks medical evidence that supports the federal employee’s information provided in his or her application.  In order for OPM to support a federal employee’s claim that he or she is disabled and unable to provide useful and efficient service in his or her current position, the federal employee should provide a well-written and detailed physician’s statement when submitting the application.  In many cases, OPM may deny a disability retirement application without supporting medical documentation.  Of all of the items in a federal employee’s disability retirement submission to OPM, the physician’s statement is arguably the most important element of the federal employee’s disability retirement application.

Important Information to Include in Physician’s Statements

Physician statements should include important information about a federal employee’s disability.  Unfortunately, OPM’s form SF-3112C and instructions do not actually provide much detail as to what specifically should be included in the physician’s statement.  As a result, many physicians are often confused as to what type of information should be included in the SF-3112C. However, based on our experience, we find that it is critical that the physician provide a great deal of detailed medical documentation in the SF-3112(C).  The most helpful type of physician’s statement further addresses the federal employee’s specific medical conditions and symptoms, and how they prevent the federal employee from performing his or her job duties as described in the federal employee’s position description.  

In preparation for asking a physician to complete the federal employee’s SF-3112(C), the federal employee should provide the physician with a copy or summary of his or her official and actual job duties. For instance, the federal employee should provide a copy of his or her position description to the physician. When preparing physician’s statements, it is important to keep in mind that OPM is not necessarily focused on whether the federal employee is fully disabled from completing a particular type of work. OPM is typically more interested in detailed medical evidence establishing how the federal employee is disabled in such a way that prevents the employee from performing his or her current job duties.

Approaching a Physician for a Statement

When a federal employee retains our firm to assist in his or her disability retirement application, we typically coordinate with the employee’s physician regarding the content needed in the SF-3112(C). We may also help to answer the physician’s questions about the disability retirement process. Many physicians are unfamiliar with the OPM disability retirement process, so we find that it can help to have legal counsel explain the process to them.  

Additionally, we often assist the physician by providing him or her guidance as to the type of medical evidence that OPM is seeking when they review the SF-3122(C).  Also, because health insurance generally does not compensate a physician for the completion of such paperwork, it is important to offer to pay for the physician’s time in preparing the statement, if appropriate.   Typically, most physicians like to help their patients in the disability retirement application process and are usually the first to recommend disability retirement to the federal employee when appropriate and warranted.

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When considering OPM disability retirement, it is important to obtain the advice and representation of legal counsel. Our firm represents federal employees in the disability retirement process before various federal agencies and OPM. Please contact us at www.berrylegal.com or by telephone at (703) 668-0070, for a consultation to discuss your individual disability retirement matter.

By Kimberly H. Berry, Esq., www.berrylegal.com

The rules governing retirement benefits for divorced federal employees and/or their former spouses can be detailed and complex. The Office of Personnel Management (OPM) is the federal agency that processes court orders, which properly articulate awards of federal retirement-related benefits to the former spouses of federal employees. Therefore, federal employees and their spouses should consider the following general advice if they are facing a divorce in the context of retirement benefits.  

1.         Be Proactive in Handling Divorce Issues. Federal employees and their spouses should be aware of the special rules governing federal retirement benefits while negotiating the terms of their divorce. We recommend utilizing a local family law attorney who is familiar with these specialized regulations and consulting with a federal retirement attorney who can advise on these complex regulations. Far too often, OPM will deny court orders due to failure to meet regulatory requirements. In such cased, the parties will most likely need to seek an amendment to their divorce-related court orders in family court and submit these amended court orders to OPM for processing.

2.         Plan Benefits Issues in Advance. Federal employees have a variety of different retirement benefits, many of which can be shared and/or assigned to former spouses after divorce by court order. The family law attorney in federal employee cases should be aware of the types of benefits available, including:  a monthly marital share apportionment (i.e., a portion of the federal retiree’s annuity); a survivor annuity benefit; a portion of the Thrift Savings Plan (TSP); and coverage under the Federal Employees Health Benefit (FEHB) and the Federal Employees Group Life Insurance (FEGLI) benefits plans. The parties to a divorce can decide the fairest division of these potential assets by familiarizing themselves with each of these types of federal benefits.  It is important, however, to begin the discussions about resolving the retirement issues as soon as possible. 

3.         Meet with Agrency Benefits Specialist. We recommend that federal employees meet with a federal agency benefits specialist well in advance of their desired retirement date to discuss their retirement benefits. The federal agency benefits specialist should be able to provide guidance and instructions on how to properly complete retirement paperwork and provide a retirement benefits estimate for the federal employee.

4.         Consider Survivor Annuity Benefits Before Retirement.  In addition, if the federal employee and his/her former spouse wish to create a survivor annuity benefit, this should be done before the federal employee’s date of retirement. It is incredibly difficult, and often times prohibited, to make modifications post-retirement to a survivor annuity benefit. Therefore, we recommend that all potential issues with survivor annuity benefits be confirmed and corrected in advance of the official retirement date. 

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As a result of the unique rules that govern federal retirement benefits through OPM, it is highly recommended that federal employees utilize an attorney who is familiar with the proper division of federal retirement benefits in court orders. Our law firm represents and advises federal employees in federal retirement and other employment matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. 

By Kimberly H. Berry, www.berrylegal.com

Federal law enforcement officers and firefighters are covered by special provisions of the U.S. Code located in Title 5 for purposes of their retirement.  Many issues can arise with respect to this type of retirement coverage, but the following is a summary of this type of federal retirement. This type of retirement coverage is available to those federal employees who have been employed as a federal law enforcement officer, firefighter (and a few other types of employees) as defined by statute.  While rare, a combination of these types of federal employment (e.g. law enforcement and firefighter) can also provide eligibility. This type of specialized federal retirement coverage is intended to enhance retirement provisions for these types of employees given the nature of their public safety service. Congress has recognized the potential issues in longevity and risks in such professions and provided enhanced retirement provisions.

By Kimberly H. Berry, Esq., www.berrylegal.com 

Our law firm represents federal employees in retirement matters before federal agencies and the Office of Personnel Management (OPM).  Federal employees are either covered under the Federal Employees Retirement System (FERS), the Civil Service Retirement System (CSRS), or CSRS Offset.  Typically, federal employees and retirees seek our legal assistance after OPM has issued a negative decision regarding their retirement case.  In such cases, the federal employee or retiree is provided with an opportunity to request reconsideration regarding OPM’s initial decision. If the federal employee or retiree eventually receives an adverse final agency decision (FAD), then he or she will then have the opportunity to appeal the FAD to the Merit Systems Protection Board (MSPB).

What is Reconsideration?

Reconsideration is simply OPM’s method of reviewing its initial decision to ensure that the applicable laws, rules and regulations have been properly applied to a federal employee or retiree’s matter.  However, in order for OPM to begin its review, the federal employee or retiree must initiate a request for reconsideration.  The OPM reconsideration process will then afford the federal employee or retiree an early opportunity to address any deficiencies and legal errors in OPM’s initial decision.  

Initial Decision and Denial from OPM

OPM must first rule against the federal employee or retiree before he or she can request OPM’s reconsideration. OPM’s initial adverse ruling is referred to as an initial decision.  Suppose a federal employee has applied for disability retirement, but OPM decides to rule against the employee. OPM would then issue an initial decision denying the employee disability retirement benefits and providing the employee with an opportunity to request reconsideration within a specified time period (usually 30 days).  Reconsideration requests can involve various retirement issues before federal agencies or OPM, including, but not limited to, disability retirement, the Federal Erroneous Retirement Coverage Corrections Act (FERCCA), and court-ordered spousal and survivor annuity benefits issues.  

Seeking Reconsideration from OPM

Generally, a federal employee has 30 days within which to request reconsideration from the date of an adverse OPM decision.  It is very important to ensure that the request to OPM is timely.  Otherwise, the request for reconsideration can be denied by OPM.  When submitting a reconsideration request, it is important to provide as much authority and documentation as possible when addressing any potential deficiencies cited or referred to by OPM in the initial decision.  For example, in disability retirement cases, it may be necessary and crucial to provide additional medical documentation if there is a question as to whether or not a federal employee is disabled for service in his or her current position.    

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When seeking reconsideration from OPM, it is important to obtain the advice and representation of legal counsel.  You can contact our law firm through www.berrylegal.com, or by telephone at (703) 668-0070, to schedule a consultation to discuss your individual federal employment retirement matter. 

By Kimberly H. Berry, Esq., www.berrylegal.com

When federal employees are involuntarily separated against their will, other than a separation for cause on charges of misconduct or delinquency, they may qualify for a Discontinued Service Retirement (DSR) annuity.  DSR retirement provides an immediate and possibly reduced annuity for federal employees that are separated against their will.  The key to a successful DSR retirement application is the underlying basis of the voluntary separation.  The final determination as to whether a DSR retirement will be approved rests with the Office of Personnel Management (OPM) and not with the individual federal agency.  

Grounds for DSR Retirement

By Kimberly H. Berry, Esq., www.berrylegal.com

In the course of their federal agency career, federal employees may develop serious medical conditions that make them unable to perform the duties of their position and make it important for them to consider filing for disability retirement through the Office of Personnel Management (OPM). 

Background for OPM Disability Retirement Applications

Federal government employees in the FERS and CSRS retirement systems are generally eligible for disability retirement depending on their time in service with an individual agency.  Federal employees in the FERS system typically must have 18 months of service and federal employees in CSRS must have approximately 5 years of service.

OPM disability retirement applications should be reviewed by an experienced lawyer before the process begins. Often times there are crucial differences between voluntarily filing for disability retirement while still employed by a federal agency and being removed from federal service for the inability to perform the duties of one’s position. It is important to understand that while many federal agency human resources employees at federal agencies may appear to be helpful, federal employees should not rely on their assistance because they may not provide the most accurate or helpful advice. Their client is the federal agency for which they work, not the federal employees that work for the federal agency in question. Often times a federal agency, for its own reasons, would prefer to see an employee resign or apply for early disability retirement, which can hurt an individual's chances for a successful application.

Federal employees can face a host of legal issues when going through the disability retirement process. Obtaining legal advice at the beginning of the process, prior to submitting any documentation or filing an application, can give federal employees the best chance of success at obtaining disability retirement from the OPM.  It is crucial that federal employees, when considering whether or not to apply for OPM disability retirement, obtain legal advice on many important issues.

Two Important Considerations in the OPM Disability Retirement Process

Two of the more common questions that come up with respect to disability retirement follow (although many different types of issues can arise and should be reviewed on a case-by-case basis by an attorney):

1. Should a federal employee apply for disability retirement early or wait for their federal employer to take action in removing them from employment based on their inability to perform their duties?  Depending upon individual circumstances, it may often times be advantageous for a federal employee to be removed from employment for inability to perform his or her normal duties rather than to voluntarily apply for disability retirement while employed in order to give the employee the best opportunity for his or her application to be accepted by OPM. This issue is often referred to as the Bruner Presumption based on the case of Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993).

2. Is a federal employee's "disability" well defined in the United States Code and other applicable regulations?  If a federal employee’s medical condition does not qualify him or her as "disabled," an application for disability retirement can often be denied. An individual can usually ensure the best opportunity for a successful disability retirement application by utilizing the services of an attorney to work with his or her physicians to thoroughly articulate the individual’s medical conditions and the reasons why these constitute a covered disability.

First Steps in the OPM Disability Retirement Process

Typically, the first step in the OPM disability retirement process is an employee’s realization and/or acknowledgement that he or she cannot continue to perform the duties required of his or her current position. The federal employee seeks medical attention and is then informed that he or she has medical limitations. These medical conditions can be physical or mental, and can be very serious. A federal agency, when faced with these issues from an employee, sometimes can be compassionate and cooperative in enabling a federal employee’s continued employment, and it may even accommodate a federal employee’s physical or mental conditions to allow him or her to stay employed with the agency.

This, however, is not always the case. Many federal agencies will attempt to place the employee on administrative leave, sick leave, leave without pay, or in other unfavorable circumstances to encourage him or her to resign from their federal employment. If that does not work, and the federal agency really wants the employee to leave, then it may attempt to remove the federal employee on the basis of his or her disability or for non-disability related reasons. Removal, solely on the basis of disability, can be a positive development in certain cases, as the law often presumes (i.e the Bruner Presumption) that if the federal employee is disabled then he or she should be entitled to disability retirement. This sometimes will make it easier to prevail in the federal employee’s application with OPM.

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A number of other legal and other issues may arise in the processing of OPM disability retirement applications, such as when to file the application, the deadlines for filing such an application, how to obtain helpful medical statements and other issues; therefore, it is very important for an individual considering this process to obtain legal advice early in the process. This article is only intended for general information. Disability retirement issues are extremely individual in nature and vary in each case. Federal employees therefore need to consult with an attorney for specific legal advice prior to initiating the OPM disability retirement process.

Berry & Berry, PLLC represents and advises federal employees with respect to their OPM disability retirement applications and provides legal advice involving the application process.  Please contact our law firm at (703) 668-0070 or www.berrylegal.com to schedule an initial consultation with an attorney to discuss your disability retirement issue.

By Kimberly H. Berry, Esq., www.berrylegal.com 

We represent federal employees in regards to federal retirement errors under the Federal Erroneous Retirement Coverage Corrections Act (FERCCA).  FERCCA was enacted in September 2000 and designed to provide relief to federal civilian employees who were placed in the wrong federal retirement system for at least three years of service after Dec. 31, 1986.

Usually, FERCCA errors arise when a federal employee experiences a break in service, especially during the mid-1980s when the Federal Employees Retirement System (FERS) plan was created. In some cases, FERCCA has provided federal employees and annuitants placed in the wrong federal retirement system with the opportunity to choose between FERS and the offset provisions contained within the Civil Service Retirement System (CSRS).

In order to determine if you are in the correct federal retirement plan, you will need to know the type of appointment you have and your work history. Federal retirement rules governing retirement plan placement are complex and contain many exceptions that are hard to follow. If you find that you fit in any of the situations described below, you could be in the wrong federal retirement system. However, keep in mind that there are exceptions to the general rules.

CSRS Coverage

If you currently maintain CSRS coverage, then you may be in the wrong plan if:

     • You worked for the federal government before 1984, but not on a permanent basis;

     • You left federal employment for more than a year at any time after 1983;

     • You have a temporary appointment limited to a year or less, a term appointment, or an emergency indefinite appointment;

     • You have no federal civilian employment before 1984; or

     • You do not have a career or career conditional appointment and you work on an intermittent basis (see the work schedule block on your SF-50).

CSRS Offset Coverage

If you currently have CSRS Offset coverage, then you may be in the wrong plan if:

     • You have a temporary appointment limited to a year or less, a term appointment, or an emergency indefinite appointment;

     • You have no federal civilian employment before 1984;

     • You do not have a career or career conditional appointment and you work on an intermittent basis (see the work schedule block on your SF-50); or

     • You did not work for the federal government for a total of five years before 1987 (not including your military service). Exception: If you worked under CSRS,  left the federal government, and your agency placed you in CSRS Offset upon your return, your CSRS Offset coverage is probably correct if you had five years of federal government service when you left.)

FERS Coverage

If you currently have FERS coverage, then you may be in the wrong plan if:

     • You have a temporary appointment limited to a year or less;

     • You do not have a career or career conditional appointment and you work on an intermittent basis; or

     • You have worked for the federal government for at least five years before 1987 (not including military service) unless you elected to transfer to FERS during a FERS Open Season or after a break in service.

FERCCA Benefits

FERCCA can also provide 1) reimbursement for certain out-of-pocket expenses paid as a result of a coverage error (e.g., attorney’s fees, costs, etc.); 2) an ability to benefit from certain changes in the rules about how some federal service is credited toward retirement; and 3) make-up contributions to the federal employee’s Thrift Savings Plan (TSP) and receipt of lost earnings on those contributions, among other provisions.

Resolving FERCCA Errors

If you think that you have a FERCCA error, you can notify your agency’s Human Resources department. Pursuant to FERCCA regulations, the federal government–upon its receipt of notice that a potential FERCCA error exists–should review your work history to confirm whether a FERCCA error actually exists and supply you with correspondence confirming the FERCCA error and other pertinent information, including benefit estimates for individuals entitled to an election option.

You should also receive a federal election form and information regarding how to receive reimbursement for your actual out-of-pocket expenses related to your FERCCA error, including attorneys’ fees. Our law firm’s FERCCA practice page is located here.  

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When seeking evaluating potential federal retirement issues, you should obtain legal advice and representation.  You can contact our law firm through www.berrylegal.com or by telephone at (703) 668-0070, to schedule a consultation to discuss your individual federal employment retirement matter.

By Kimberly H. Berry, Esq., www.berrylegal.com 

Our law firm handles many different types of federal retirement issues in our representation of federal employees.  One of the more common types of retirement cases that we often handle involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management (OPM). Federal employees filing for disability retirement are typically either covered under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS).  

The following questions identify a few of the initial considerations that you should examine when determining whether or not to pursue OPM disability retirement. If you are seriously considering filing for disability retirement, there are many considerations (certainly more then just five) to discuss with an attorney knowledgeable in this area of law.

The following five tips are only meant to get you thinking through some of the issues and concerns as you to consider or begin filing for OPM disability retirement:

1. How serious are the federal employee’s medical issues and are they linked to the federal employee’s position description duties?

When making a disability retirement decision, keep in mind that OPM evaluates your continued ability to work with your medical condition in the context of the duties described in your position description.  OPM uses the phrase “useful and efficient service in your current position” to describe the degree to which you are able to carry out your job duties. If the medical disability is not deemed serious enough, or not fully supported by medical documentation and evidence, and is not sufficiently linked to your inability to “usefully and efficiently” carry out your job duties, then OPM may deny the disability retirement application.  

For instance, an application of a federal law enforcement officer with a continuing serious heart condition would likely be given serious consideration if her medical reports and letters adequately document her inability to usefully and efficiently carry out her position description duties. In contrast, a federal employee with a back injury and whose position involves mostly administrative duties, who does not have appropriate medical evidence to show the continuing seriousness of his illness and inability to perform his job duties, could potentially have difficulty succeeding in the disability retirement application process. 

2. How long is the medical disability realistically expected to last?

The duration of a serious medical disability is very important as well.  OPM generally requires that a medical disability be expected to last at least one year in duration.  When considering whether to file for disability retirement, it is important for you to consider the expected duration of your medical disability. Disabilities with known shorter duration could be problematic for you in the application process.

3. Can a federal employee survive on a reduced annuity?

If you are considering filing for OPM disability retirement, understand that this type of retirement usually provides you with a lower monthly retirement annuity in comparison to full retirement.  As a result, we recommend that you consult with a financial advisor about the impact of a potential reduced annuity prior to filing for disability retirement.  

4. Are there modifications to a federal employee’s current position that can be made to allow the federal employee to continue to work?

Often times a federal agency will work with you to provide you with a reasonable accommodation (i.e., change in duties, hours, telework or other adjustments) that can make your current position and medical condition compatible or workable.  This can often be the best solution. As a part of the disability retirement process, the federal agency is required to certify that it is unable to accommodate your disabling medical condition in your present position. The agency must also certify that it has considered you “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassign­ment.” 

5. Do your medical professionals believe that you should not continue in your current position?

This is an important consideration when filing for disability retirement.  We find that physicians will usually be open with their patients about whether or not it is a good idea to keep working in their current federal employment position.  We have identified at least two reasons to discuss a possible filing for OPM disability retirement with your treating medical providers. First and foremost, your health should be of primary importance and continuing in a job that hinders or impedes your recovery is not good for you.  Second, physicians and their medical opinions are necessary and, in fact, crucial in the disability retirement application process with OPM.  OPM will require physicians’ statements about your medical issues, and these physician statements can either make or break your potential outcome in the disability retirement application process.

Contact Us

When considering OPM disability retirement, it is important for you to obtain the advice and representation of legal counsel. You can contact our law firm through www.berrylegal.com, or by telephone at (703) 668-0070, to schedule a consultation to discuss your individual federal employment retirement matter.