Doobie Brother Entitled To Federal Disability Retirement

Jun 3, 2011

When a senior border patrol agent of the Department of Homeland Security was arrested for selling marijuana, his employer suspended him from duty because of the criminal charge. During the suspension, he applied to the Office of Personnel Management (OPM) for federal disability retirement, claiming that during the process of the arrest his previous back problems had become significantly aggravated – to the point that he would not be able to perform his former job duties.

The DHS contended that although they could not presently accommodate his disability (given the aggravation of pre-existing conditions), he did not possess those deficiencies during his working period, so, he should not be entitled to the federal disability retirement benefit due to his failure to prove deficiency in job performance before his suspension.

Upon his appeal of the OPM’s denial of his benefit, the Merit System Protection Board’s (MSPB) administrative judge agreed with the OPM, finding the supervisor’s testimony more credible than that of the employee.

So he appealed that decision, too! And the appellate court determined that the testimony of the former supervisor was largely immaterial, because the employee was not on duty at the time of the onset of his disability, and did not return to duty because of the suspension. Of course he had no deficiencies to report to his supervisor – he wasn’t on active job duty when the disability began or thereafter. But the fact that his actual disability began after his suspension from work didn’t keep him from being entitled to the disability benefit – because he was still officially an employee when the disability arose.

The DHS had already conceded that they could not accommodate his disability after it began, but while he was still, officially, an employee (albeit during the time of his suspension). That, coupled with the evidence regarding his physical limitations, was sufficient for him to satisfy the one of the technical requirements for entitlement to the federal disability retirement benefit: accommodation of the disabling medical condition in the position held must be unreasonable.

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