Retirement Law Blog

Seeking Reconsideration from OPM in Retirement Cases

By Kimberly H. Berry, Esq., www.retirementlaw.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.    

Conclusion

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.retirementlaw.com, www.berrylegal.com, or by telephone at (703) 668-0070, to schedule a consultation to discuss your individual federal employment retirement matter.  The law firm's Facebook page is located at the following Internet address: https://www.facebook.com/BerryBerryPllc.

 

Redeposit Issues Affecting Federal Employee Annuitants

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

Occasionally, we encounter federal retirement cases involving former federal employees who have retired prior to having reached their retirement age or required length of service. Many of these departing federal employees take withdrawals of their retirement contributions when they leave federal service. Federal employees often do so based on misinformation provided by federal agency officials. A common situation involving agency misinformation typically involves when the federal employee withdraws his or her contributions based on the misinformation that he or she can later redeposit retirement contributions after departing federal service when he or she reaches retirement age. 

Redeposit Issues for Federal Employees

The important point for departing federal employees to take away here is that former federal employees can potentially redeposit their retirement contributions, but only if they have taken a partial (as opposed to a full) refund of their retirement contributions. A full refund of retirement contributions generally voids all annuity rights based on the service for which the refund was made.  However, there does appear to be a small exception for a former federal employee who has received a refund for some, but not all, of his or her retirement contributions. See 5 C.F.R. § 831.112 (a)(2); 5 U.S.C. § 8334 (d)(2). In these types of cases, the presence of a remaining retirement deposit may entitle a former employee to a reduced annuity, and potentially provide the former employee the ability to redeposit funds. Again, this exception does not appear to apply to a former federal employee who has received a full refund of his or her retirement contributions. In addition, former federal employees can circumvent this issue if they obtain future federal employment that reinstates their retirement rights.

Issues Involving Incorrect Retirement Advice Given by Federal Agencies

Generally, government misinformation is a difficult basis with which to address this issue, especially years after the federal employee has left his or her respective federal agency. We have found that this type of legal argument is unlikely to change the outcome of a retirement case before the Office of Personnel Management (OPM) or the Merit Systems Protection Board (MSPB).  In other words, it can be difficult to hold a federal agency liable for its inaccurate retirement advice, except in the instance where such advice was purposefully and maliciously intended to be harmful to the former federal employee. The MSPB and the courts have been more receptive to federal employee arguments involving a federal agency that has intentionally provided inaccurate advice to harm the federal employee.  See OPM v. Richmond, 496 U.S. 414, 421 (1990) (Supreme Court leaving open the possibility that a federal employee might have redress against OPM denying benefits). 

Conclusion

When departing or retired federal employees have federal retirement issues, such as redeposit matters, it is important to obtain the advice of legal counsel, especially with regard to questions concerning whether or not to withdraw retirement contributions. Our law firm is experienced in federal retirement issues and is available to advise individuals regarding these types of federal retirement matters. We can be reached at www.berrylegal.com or by telephone at (703) 668-0070.