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No Job, No Disability Retirement Either

A former federal employee said the VA did not live up to the agreement when OPM disapproved her application for disability retirement.

Here’s a recent Federal Circuit case that involves an unsuccessful petition by a former federal employee to enforce a settlement agreement with her agency. (Hunter v. Department of Veterans Affairs, C.A.F.C. No. 2006-3338 (nonprecedential), 2/12/07)

Hunter was separated by her agency in early 2003 and appealed to the Merit Systems Protection Board. More than two years later the agency and Hunter settled the case.

As described in the court’s opinion, under the settlement, the agency agreed to offer Hunter another job provided she received written medical clearance to perform the duties of the new position. If she could not get medical documentation, then Hunter would apply for disability retirement, the agency would not contest the application and if requested would help her with the process.

Hunter’s first petition to the MSPB for enforcement of the settlement alleged that she had filed for disability, had not received a response, and the agency had not adequately helped her in the process. Her second petition for enforcement alleged that the agency had not offered her another position, and that the Office of Personnel Management had denied her disability retirement application.

The agency responded that it had offered Hunter another agency job, as required by the settlement agreement, but Hunter’s doctor would not give her the required medical clearance. Therefore the agency helped her file for disability retirement.

The MSPB Administrative Judge found the agency had fulfilled its obligations and dismissed Hunter’s petitions for enforcement. The appeals court has now affirmed the Board’s decision: “The settlement agreement imposed two alternative obligations on the VA….Nothing in the settlement agreement guaranteed that OPM would grant Ms. Hunter disability retirement. OPM is a separate federal entity over which the VA has no control.” (Opinion p. 4)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.