By Barbara Haga, February 14, 2023

In this third column of the series on Clean Record Agreements (CRAs), I am focusing on retirement. Before we return to the 2013 MSPB report Clean Record Settlement Agreements and the Law, we need to look at another reference. 

OPM Guidelines

If you are in the business of settling cases, whether adverse actions or EEO, you should have the OPM Settlement Guidelines at your fingertips. OPM’s document opens with: “Since OPM administers the retirement funds, agencies may not agree to matters in settlement agreements that give more than what the retirement regulations would provide.” The report includes the following illustration:

For example, assume that an employee who meets the statutory age and service requirements for immediate retirement is discharged on grounds of misconduct. A court or administrative body could order reinstatement of the individual with back pay if it determined that the discharge was erroneous. It could not order a two-grade level promotion effective three years prior to the removal at issue. A claimant may urge that such a provision be included in a settlement, to create a higher annuity, by altering the “high-three” year average pay that is part of the annuity computation formulas under both CSRS and FERS. Because the court or administrative body could not order such a retroactive promotion, the settlement may not provide it.

Disability Retirement. OPM guidelines also include limitations related to eligibility to retire under disability provisions. OPM states the application must be filed within one year of the date of separation unless the employee was mentally incompetent. Also, per OPM, it is inappropriate for an agency to settle an action by putting the employee in a non-pay status to a date within the one-year period solely to allow the individual to file for disability absent compelling evidence that the individual was actually mentally incompetent.

The Board and OPM have not always been on the same page regarding the issue of settlements that change the date of a separation action to a much later date, which brings the appellant into the one-year period for filing for disability retirement. In Parker v. Office of Personnel Management, 93 MSPR 529, (MSPB 2003), aff’d  91 F. App’x 660 (Fed. Cir. 2004) the Board reversed itself on whether OPM could deny benefits in such situations.

Parker stands for the proposition that when OPM is not a party to a settlement agreement, such as when an agency settles an erroneous removal with an employee, it can review such a settlement to determine if a separation date was fixed solely to meet statutory requirements to entitling an appellant to annuity benefits. In Parker, the agency gave a retroactive four-year term appointment in the settlement that would allow the employee to gain additional service time, which would qualify him for discontinued service retirement (DSR). Once that term ended, he would be eligible to apply for DSR. OPM found the appointment not qualifying service, because Parker was on military duty for some of the time. OPM determined the appointment was simply a construct to allow the employee to obtain retirement benefits when he would have otherwise not been eligible.

In prior cases, the MSPB had found a settlement entered into the record of an appellant’s appeal for enforcement purposes was equivalent to a final Board order in all respects, and that OPM was required to affect its terms when adjudicating the appellant’s entitlement to retirement benefits. In Parker, however, the Board found that OPM was not obligated to credit the appellant with service based on such a “fabricated” appointment.

Inability to Perform. With an inability to perform action, if the individual subsequently applies for disability retirement, the case is subject to the Bruner presumption. If the agency removes for inability to perform, then the employee is presumed to meet the criteria for disability retirement. Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed. Cir. 1993). However, OPM does not apply the presumption unilaterally.

For example, an individual is separated for misconduct or other non-medical related performance grounds, but, by agreement, documentation is changed to base the separation on medical inability to perform the job. Where this is done merely to enhance the individual’s application for a disability annuity, OPM will not apply the Bruner presumption. If the medical evidence demonstrates that the original personnel action was erroneous because the individual was unable to perform the job and the agency was unaware of the medical conditions at the time of separation, OPM then will apply the presumption.

The bottom line: OPM must approve the disability of discontinued service retirement. While you may settle with the intention that retirement benefits will be granted to the employee, only OPM can make that determination. OPM may deny the benefits if it believes the action was created solely to enable the person to obtain retirement benefits for which he would otherwise not have been eligible. If that happens, there goes your settlement.

More from MSPB

A disability retirement application requires a supervisor’s statement about the employee’s limitations and the impact of those conditions on performance, conduct, and attendance. The statement is completed on an official government form and the person completing it must sign and certify that the information is true to the best of her knowledge.  Not answering  questions on the document is not an option. The report explains the issue and the options to deal with it:

Occasionally, parties will settle an appeal with the expectation that the appellant will apply for disability retirement. Under these circumstances, the parties should anticipate that the agency’s obligation to provide a truthful supervisor’s statement may conflict with the general disclosure limitations of the CRA. A well-drafted CRA should take this into account and address the supervisor’s statement separately, adjusting the parties’ expectations of what the supervisor’s statement may (and must) contain, and defining any limitations on the information that the agency may provide. As discussed below, parties have taken different approaches to this matter, including promises to support an application, promises not to oppose an application, and promises to refrain from including negative remarks in the supervisor’s statement.

The report includes examples of cases where those various options were used. The case where the agency was found not to have breached the settlement agreement was Miller v. USPS, 90 MSPR 550 (MSPB 2002). In Miller. the settlement agreement stated the agency would not affirmatively oppose the appellant’s disability retirement application. However, the agreement also added that it did “… not require the agency to provide incorrect information to the Office of Personnel Management.” The Board found the information provided by the agency, which ultimately led to a denial of disability retirement, was factual and did not constitute a breach of the agreement. [email protected]

[Editor’s note: Join FELTG for Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives, a two-hour virtual training on May 17.]

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