In order for “fairness” to be a valid criterion, there must be a set of rules by which to judge the fairness; further, the process of judging whether it meets with the foundational standard must itself be fair; but whether the process is fair must be judged by a criterion which transcends the process itself, and thus there must be a meta-criterion. But how does one judge whether or not the meta-criterion is fair?
— from Philosophical Conundrums
It is sometimes counter-productive to over-argue a legal principle, for the effectiveness of an argument, no matter how logically sound or persuasive, is somewhat dependent upon its discretionary use. To argue case-law, statutory authority, and legal principles comprise the arsenal of weapons for a lawyer representing a client. This is true in all areas of law: including Federal Disability Retirement law, whether at the administrative agency level (before the Office of Personnel Management) or at the quasi-judicial or appellate levels (the Merit Systems Protection Board; Petition for a Full Review; or to the Federal Circuit Court of Appeals).
When arguing a legal principle in an effort to obtain a benefit for a Federal or Postal Employee, effective advocacy sometimes requires two (2) overarching prerequisites: discretion and the recognition that “process” is sometimes as important as the “substance” of an argument.
Take, for instance, what has come to be known as the Bruner Presumption. The “Bruner Presumption” is so named from a Federal Circuit Court case, Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993), and is valid as the reigning legal principle in all Federal Disability Retirement applications, especially where the issue of a Federal or Postal employee’s termination is concerned. The laws concerning an employee’s removal for his or her medical inability to perform the essential functions of his job or position, constitutes prima facie evidence that the employee is entitled to disability retirement — as a matter of law. With such a presumption of entitlement, the burden of production then shifts to OPM to produce evidence sufficient to support a finding that the applicant is not entitled to disability retirement benefits. See Bruner v. Office of Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993); Marczewski v. Office of Personnel Management, 80 M.S.P.R. 343 (1998).
This does not mean that the Applicant can just “sit back” and not submit any medical evidence – indeed, the Applicant must still comply with the statutory requirements of submitting medical evidence such that it meets a standard of “preponderance of the evidence”. Since the opinion came out in 1993, there have been some “evolutionary” developments in the case-law, as is often the natural extension of an original opinion.
Thus, in more recent cases, the Merit Systems Protection Board has held that the Bruner Presumption also applies where “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002).
Now, with this background in mind, what should one do if a Federal or Postal employee is removed from his or her position, based upon some other reasoning – e.g., for “unacceptable attendance”, for “being absent without official leave”, for “failing to follow proper leave procedures”, or some similarly stated basis? Further, assume for the sake of argument that neither the “Agency’s Proposal to Remove” nor the “Decision to Remove” contains any “specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform his/her duties.” Does this mean that the Bruner Presumption does not apply? Strictly speaking, Probably. Does this mean that the Bruner Presumption should not be argued? Probably not.
While the narrow interpretation of the prevailing case-law in Federal Disability Retirement cases requires that, in order for the Bruner Presumption to apply, one or the other of two condition precedents need to occur:
- Removal based upon one’s medical inability to perform one’s job
- Removal for extended absences (or some similar ground), with “specifications” which refer to a medical basis
Thus, if neither of the above conditions are present, one might simply decide to abandon the idea of arguing the Bruner Presumption to the Office of Personnel Management or to an Administrative Judge at the Merit Systems Protection Board (as to the former, one might further argue that it is a waste of time to argue anything at the OPM level, but that is a separate issue altogether). However, sometimes it is just as important in arguing an issue because of the process, as opposed to the substance of an issue. Think of it this way: If it can be shown that all of the conditions were met, but it was merely the Agency who refused or failed to include any “specifications”, then it becomes a “fairness” issue, and fairness issues are difficult to argue against.
Thus, an effective “fairness” argument would be made in the following manner: Copies of letters to the Agency, and responses from the Agency, show that the Agency was fully aware of the medical condition of the Applicant; a removal by the Agency was based upon the extended absences of the Applicant; it is clear that, despite what the Agency’s Proposed Removal letter explicitly states, that the true and underlying implicit reason for the removal was because of the medical inability of the Applicant to perform one or more of the essential elements of one’s job. It would be unfair to fail to recognize that a presumption of entitlement applies in this particular case, merely because the Agency failed to explicitly state what was implicitly obvious.
In such an argument, it is the process which is important, and not the substance of whether one actually gets the advantage of the Bruner Presumption. At the same time, however, it is always important to remember the second prerequisite of effective advocacy: “discretion”. The “fairness” argument should be selectively used, and not very often. To overuse such an argument will result in the loss of efficacy, because all “process arguments” are judged based upon its close resemblance to the substantive argument; and when one argues too many cases on a “process” level too far removed from the substantive argument, loss of credibility ensues.
In summary, “process” arguments should be used with discretionary purpose; the argument for the Bruner Presumption can be an effective tool in winning a Federal Disability Retirement case. However, as with all arguments, both legal and non-legal, always remember, as Falstaff stated in Shakespeare’s Henry IV, Part 1, Act V, Scene IV: “The better part of valor is discretion…”