Author Archives: Miami APWU

‘Keeping It Local’ with Political Activism

By: John L. Marcotte, APWU National Legislative & Political Department Director

(This article appeared in the January-February 2014 issue of The American Postal Worker magazine.)

As the newly elected director of the Legislative and Political Department, I want to thank you for your support. Your support gives our union a mandate to make things happen, keep postal workers in the middle class, and protect our hard-won benefits. I accept the mandate and ask that you join with me to educate our friends and neighbors, participate in rallies and other activities, and organize for sweeping change.

We will win job security by mobilizing our members to fight anti-postal measures and by using political action to expand our reach and gain political allies.

“Keeping it Local” is a new program launched by the Legislative and Political Department to engage and train our active members at the local and state level in political action. Training will allow for a more coordinated and sustained effort to support local union involvement in events, pickets and rallies on a broad range of worker issues. Simply put, we will ramp up local involvement to better direct, communicate, and coordinate our activities across the country.

“Keeping It Local” means we protect our constitutional right to a vibrant Postal Service by building broad support among our allies and their organizations. As President Dimondstein has said, this includes seniors, retirees, civil rights organizations, veterans groups, the labor movement, community groups, faith-based organizations, the Occupy movement, and even some business groups.

Strengthening COPA 3-6-9

As a part of our “Keeping It Local” effort, we will strengthen our COPA framework by offering the option for contributors to participate in COPA 3-6-9, a forthcoming initiative designed to support and empower our interests in our neighborhoods and nationwide.

With the COPA 3-6-9 initiative you can be sure that your COPA contributions will have a real impact on your community. Through COPA 3-6-9, we will ask you to give $3, $6, or $9 per pay period. We intend – as far as is practical – to give the first third of these COPA contributions to support local allies and initiatives in your home state; to give the second third of your COPA contribution to support candidates in federal races in your state, and to give the final third of your COPA contribution to the general COPA fund. COPA 3-6-9 will allow you to put your money to work at the local and federal level, so keep your eyes peeled for its rollout.

For COPA 3-6-9 to work, every APWU member must have skin in the game. COPA disbursements at the local and state level give us an opportunity to secure legislative wins and build relationships between APWU locals and elected officials early in their careers. We have to give to get.

The APWU represents more than 220,000 postal workers and retirees, and nearly 2,000 private-sector mail workers. Yet COPA has less money now than at the start of both the 2010 and 2012 campaign seasons. We need to do better and we will. Clearly, the bigger the COPA team, the stronger we are.

Why do we need to “keep it local,” train more APWU members in political activism, and give more to COPA? We need greater resources to fight for the dignity of middle-class postal jobs, stop facility closures, save overnight delivery standards, keep our healthcare plan in the Federal Employees Health Benefits Program (FEHBP), pursue innovation at the USPS, and work to increase the opportunities to vote by mail.

On the legislative front, the department has been educating members of Congress about the devastating cuts to the mail processing network and the delays they are causing. News stories about late mail are surfacing across the country and we are hearing from members of Congress and their staff that late bills and payments are impacting their constituents’ credit and resulting in late fees.

In identifying new potential allies who share our concern about slowed mail, we want to hear directly from APWU members about postal customers who are suffering through the mail slowdown created by closures and consolidations. Please provide us with specific information, such as the nature of the delay, its impact, the individual or organization’s name, location and contact information.

The dictionary defines “activism” as “vigorous and sometimes aggressive action in pursuing a political or social end.”

Political activism means that we will unleash our union membership in every congressional district to achieve the mandate you have given us. We will be focused, successful, and relentless. Be assured no matter what “crisis” is generating headlines in Washington DC, your Legislative and Political Department will be aggressively working every day on your behalf.

Brothers and sisters, we are pursuing a more perfect union and a local action network. United in solidarity we will score victory.

We Will Build a ‘Grand Alliance’

By: Mark Dimondstein, APWU National President

(This article appears in the January-February 2014 edition of The American Postal Worker.)

Greetings, my sisters and brothers! I am deeply honored to be elected APWU president, and I greatly appreciate the many activists around the country who worked for change. I join APWU members across the country in thanking the outgoing officers for their years of service to the APWU and their help in implementing a smooth transition.

Our election was hotly contested, with sharply differing visions for the future of our struggle. But the election is over, and unity must be the watchword as we fight Congress, the privatizers, and a postal management that is bent on destroying the Postal Service.

As your president, I promise that I will always be honest with you; I will listen well, welcome new ideas, and work for the common good.

As I embark on this weighty responsibility, I salute those who have come before us in the labor movement — from the Haymarket martyrs of 1886, who were killed in the fight for the eight-hour day, to the women and children murdered by Rockefeller thugs in the 1914 Ludlow massacre. From the courageous Flint sit-down strikers of 1936 whose brave actions forced the auto bosses to recognize their union, to those who perished, endured the beatings, jail and firings, persevered and overcame so that the working class could have a better life.

In our postal family, the heroes of the Great Postal Strike of 1970 defied unjust laws to fight for dignity and a livable wage. Their victory laid the basis for the APWU and for good union jobs in the USPS.

Dire Straits

But our U.S. labor movement is in dire straits. We are at the lowest unionization rate in 97 years. And with this weakened union movement, wages are down while corporate profits are up, more people are jobless and real pensions are disappearing. Union busting and concessionary union contracts abound, and workers lack any real independent political voice.

And anything that stands for the public good — public libraries, public education, public utilities, public transportation and public postal services are under severe attack.

It is in this context that APWU members will chart a new direction as we face the daunting challenge of protecting our jobs, our retirement and our public postal service. What is the new direction?

First, the Postal Service is at a cross roads — will it be the post office of the 1%, the Wall Street privatizers and profiteers? Or will it remain in the hands of the people, the 99%, offering universal, uniform, publicly-owned service for all?

The threat of privatization is very real. The threat to subcontract all of mail processing, retail, transportation, main­tenance and support services is upon us.

Not Enough

So how do we most effectively fight back against hostile management, hostile Wall Street and a hostile Congress?

Writing to Congress is important, but it is not enough. Lobbying for legislation is important, but it is not enough. When the Flint sit-down strikers occupied a General Mo­tors plant in 1936, labor law reform came to life. When women took to the streets to demand the right to vote, they won. When courageous civil rights workers fought segre­gation with sit-ins and boycotts, the 1964 Civil Rights Act followed.

History shows that movements move Congress. Movements create legislative victories, not the other way around.

So, we must build a “grand alliance” between the peo­ple of this country and postal workers. We must mobilize our allies and their organizations — including seniors, retirees, civil rights organizations, veterans groups, the labor movement, community and faith-based organiza­tions, the Occupy movement, and even some business groups — in defense of America’s right to vibrant public postal services.

We have done this in many separate locations, but to re­alize the true power of this grand alliance, we must do it on a coordinated national scale. And to protect jobs, we must enhance postal services. Services such as basic non-profit banking would be a real benefit to the people and an answer to the Wall Street “Banksters” who devastated our economy.

Second, we must build unity among the postal unions. We have a common foe, yet in these times of crisis we are too often working at cross purposes, sending different messages, supporting different legislation, organizing different rallies, signing different petitions — making it impossible to effectively organize the public.

Third, we must implement a nationally-coordinated plan to fight plant consolidation and its disruptive impact on postal workers and our families. Plant closures are an es­sential part of management’s plan to dismantle the Postal Service — and pave the way to turn mail processing over to Pitney Bowes with its non-union, low-paid workforce.

On the Workfloor

Fourth, and so very important to our members working day-in and day-out, we must fix many serious problems with our contract.

We must fight to restore full-time work and stop the race to the bottom. We must fight for many more conversion opportunities for our PSE brothers and sisters while protecting the retreat rights of excessed employees. We must reduce the number of non-career workers and fight for the coming generations, as all unions should.

We will only succeed if our members are involved. The next round of negotiations will be extremely difficult, but we will not negotiate from fear. We will prepare early and seek input from union members.

We Are Not Alone!

We have a long and rocky road ahead of us, but we are not alone.

In 2011, when workers in Wisconsin rose up, 100,000 strong, in defense of their union rights and union jobs, they showed that workers are willing to stand up and fight back. In 2012, when the owners of Republic Window and Doors began closing the plant, workers occupied the factory to protect their rights and benefits — and won! Later that year, the Chicago Teachers Union forged a mighty alliance between workers, parents and the community, fought the powers that be, and prevailed.

Wal-Mart workers are stirring. Fast food workers are demanding a living wage. We are not alone. A revitalized labor movement is indeed possible!

It is late in the game to save the public Postal Service, but we can save it with an unrelenting fight. Let’s stand together, unite with other postal unions and the labor movement, rally the American people in defense of their Postal Service, and stand with workers around the world in our fight for a better life!

Social Security Announces New Compassionate Allowances Conditions

Wednesday, January 15, 2014
For Immediate Release
Press/Media Contact: LaVenia J. LaVelle,Press Officer

Carolyn W. Colvin, Acting Commissioner of Social Security, today announced 25 new Compassionate Allowances conditions, including a dozen cancers, bringing the total number of conditions to 225.  The Compassionate Allowances program expedites disability decisions for Americans with the most serious disabilities to ensure that they receive their benefit decisions within days instead of months or years. The new conditions also include disorders that affect the digestive, neurological, immune, and multiple body systems.

“We are dedicated to providing vulnerable Americans with faster access to disability benefits through our Compassionate Allowances program,” said Acting Commissioner Colvin. “Social Security disability benefits are a vital lifeline for individuals who are facing severe diseases and we must ensure that they receive the benefits they rightly deserve.”

The Compassionate Allowances program identifies claims where the applicant’s disease or condition clearly meets Social Security’s statutory standard for disability. By incorporating cutting-edge technology, the agency can easily identify potential Compassionate Allowances and quickly make decisions. To date, almost 200,000 people with severe disabilities have been approved through this fast-track disability process.

The Compassionate Allowances program is a significant initiative that highlights collaboration between government, medical experts, advocacy groups, and members of the public. Social Security has conducted public outreach hearings and gathered feedback from various stakeholders to identify conditions that are most likely to meet the agency’s definition of disability.

“I am extremely pleased that the SSA has included Prostate Cancer in its Compassionate Allowance list – a decision that will save lives, and give more patients access to treatment options,” said Congressman Elijah Cummings (D-MD). “Working with constituents fighting this disease, I know just how life altering it can be, as well as how many will benefit from this change in policy.”

For more information on the program, including a list of all Compassionate Allowances conditions, please visit

New Compassionate Allowances Conditions

  1. Angiosarcoma
  2. Atypical Teratoid/Rhabdoid Tumor
  3. Chronic Idiopathic Intestinal Pseudo Obstruction
  4. Coffin- Lowry Syndrome
  5. Esthesioneuroblastoma
  6. Giant Axonal Neuropathy
  7. Hoyeaal-Hreidarsson Syndrome
  8. Intracranial Hemangiopericytoma
  9. Joubert Syndrome
  10. Leptomeningeal Carcinomatosis
  11. Liposarcoma- metastatic or recurrent
  12. Malignant Ectomesenchymoma
  13. Malignant Renal Rhabdoid Tumor
  14. Marshall-Smith Syndrome
  15. Oligodendroglioma Brain Tumor- Grade III
  16. Pallister-Killian Syndrome
  17. Progressive Bulbar Palsy
  18. Prostate Cancer – Hormone Refractory Disease – or with visceral metastases
  19. Revesz Syndrome
  20. Seckel Syndrome
  21. Sjogren-Larsson Syndrome
  22. Small Cell Cancer of the Thymus
  23. Soft Tissue Sarcoma- with distant metastases or recurrent
  24. X-Linked Lymphoproliferative Disease
  25. X-Linked Myotubular Myopathy

Avoid chained CPI, federal employee groups urge White House

October 9, 2013

By: Sean Reilly

A coalition of federal employee, retiree and veterans groups pressed the Obama administration on Wednesday to avoid changing the government’s formula for calculating cost-of-living increases for pensions and other benefits.

“We’re all concerned about this [chained consumer price index] proposal,” Robert Silverman, president of the American Foreign Service Association, said at a news conference outside the Capitol. The union, which represents State Department diplomats, is one of several groups worried that the administration could embrace the less generous inflation measure as part of a long-term deficit reduction deal with congressional Republicans.

“It should not be a part at all of any budget negotiation,” Rep. Jan Schakowsky, D-Ill., said.

The administration proposed adopting the chained CPI in its fiscal 2014 budget request, saying that most economists agree it is a more accurate inflation gauge than the standard CPI because it accounts for consumers’ tendency to switch to cheaper items when the price of other goods rises. Over the next decade, the switch to a chained CPI would cut projected future deficits by at least $230 billion, according to the request.

But critics counter that the chained CPI doesn’t account for medical costs which make up a larger share of expenses for older people than for the population as a whole. Over time, they say, using the chained CPI to calculate cost-of-living-increases for pensions and Social Security benefits could cost recipients thousands of dollars that they would otherwise receive under the standard CPI.

On Wednesday, Schakowsky said that she didn’t know whether the White House intends to put the chained CPI on the table in any budget talks. The administration’s immediate priorities are persuading GOP lawmakers to raise the nation’s borrowing limit in time to avoid a potentially crippling default and pass the stop-gap spending resolution needed to reopen the government.

But in a Wednesday opinion piece published in The Wall Street Journal, House Budget Committee Chairman Paul Ryan, R-Wis., called on the White House to negotiate “modest reforms” to entitlement programs and the tax code.

Outside groups are also urging all sides to look past this month’s bitter stalemate to begin tackling long-range financial challenges. On Thursday morning, for example, the bipartisan organization, No Labels, is holding an event at the Capitol with more than 40 lawmakers billed as “Stop Fighting, Start Fixing!” No Labels has not taken a position on the chained CPI, according to a spokeswoman.

Other participants in Wednesday’s news conference included Sen. Bernie Sanders, I-Vt., the National Active and Retired Federal Employees Association (NARFE), the Military Officers Association of America and the National Committee to Preserve Social Security and Medicare.

OPM Provides Guidance for Shutdown Furloughs

October 9, 2013


The Office of Personnel Management (OPM) has prepared human resources guidance for agencies and employees on shutdown furloughs (also called emergency furloughs). A shutdown furlough occurs when there is a lapse in annual appropriations. Shutdown furloughs can occur at the beginning of a fiscal year, if no funds have been appropriated for that year, or upon expiration of a continuing resolution, if a new continuing resolution or appropriations law is not passed.

In a shutdown furlough, an affected agency would have to shut down any activities funded by annual appropriations that are not excepted by law. Typically, an agency will have very little to no lead time to plan and implement a shutdown furlough.

NOTE: This guidance applies to activities that are funded by annual appropriations. Some agency functions have alternative funding sources and, as a result, are not directly affected by a lapse in annual appropriations. Employees performing those functions will generally continue to be governed by the normal pay, leave, and other civil service rules. Agencies should consult with their legal counsel if they have further questions concerning this distinction. Employees should consult with their human resources office.

To download OPM’s shutdown furlough guidance (35 page PDF, updated Oct. 11, 2013) go to:

Alzheimer’s, CPI, Debts to USPS

Source: American Postal Worker Magazine Articles: July/August edition
Judy Beard, Director
Retirees Department

(This article first appeared in the July/August 2013 edition of The American Postal Worker.)

Alzheimer’s disease has touched the lives of most Americans, either through family members, friends or neighbors. Many of us have thought, “Are misplacing my keys a few times a month temporary moments of memory loss or a sign of Alzheimer’s?” The fear of the unknown and the uncertainty that comes with aging leads to many questions.

According to the Alzheimer’s Association (, one in nine seniors has Alzheimer’s disease, but half are undiagnosed. Early diagnosis is key to managing the disease.

In April, the HOPE for Alzheimer’s bill was introduced in Congress (S. 709 in the Senate and H.R. 1507 in the House). “HOPE” stands for Health Outcomes, Planning, and Education. The legislation would provide Medicare coverage for services such as diagnosis of Alzheimer’s disease and care-planning for the newly diagnosed.

The bill has bipartisan support, but not enough. Please contact your senators and representative and ask them to co-sponsor the bill.

We also encourage you to continue to voice support for the Postal Service Protection Act (S. 316 / H.R. 630). The legislation is urgently needed to provide financial relief to the USPS. The Postal Service Protection Act would end the agency’s pre-funding mandate; allow it to recover overpayments made to the federal Treasury; protect service standards and six-day delivery, and allow the USPS to offer new products and services to generate new revenue.

We also encourage you to continue to oppose the “chained CPI.” President Obama’s 2014 budget would use the chained Consumer Price Index (CPI) to calculate cost-of-living adjustments for Social Security recipients, which would lower living standards. We support strengthening Social Security, cutting tax loopholes for the very wealthy and corporations, and instituting the CPI-E, which more accurately reflects how seniors experience inflation.

Outstanding Debts

Reminder: A proposal by Retirees Department during the 2010 contract negotiations resulted in language that outlines the rights of retirees when faced with a USPS debt.

Before the Postal Service collects an alleged debt, retired USPS employees are entitled to written notice of the outstanding debt, including notice of the right to file a grievance. The retired employee must file a grievance within 14 days at his or her last office of employment. Once a grievance is filed, the Postal Service is prohibited from recovering the debt until the grievance procedure has been exhausted.

Department Grows

Thank you to the APWU locals, state unions, and retiree chapters that sponsored events honoring seniors and recent retirees during the last few months. Your programs help disseminate information about the department and the work we do.

We have more than 40,000 members and we are still growing! Retirees often remark that they take pride in continuing union membership and appreciate the benefits of belonging to APWU.

FERS & CSRS Disability Retirement: Bruner Redux and the Lull of the Legal Presumption

July 9, 2013

Robert R. McGill

A sentry who daydreams while on duty imagines himself awake in the midst of a fantasy, in danger of shooting himself in his foot because of the images of courage he would have, but for the monotony of the momentary lull of dawn’s quietude, as the princess whom he protects softly stirs in the comfort of satin bed sheets.
— A Greek Proverb

What is familiarly known among practitioners of Federal Disability Retirement Law as the “Bruner Presumption” is essentially a recognized legal advantage in a Federal Disability Retirement case.

For those Federal or Postal Disability Retirement applicants who intend to assert such a presumption, and who intend to rely upon the legal force of its persuasive authority, a word of caution:  Act as if you don’t have it.  While it may be well-established law that an employee’s removal for his or her medical inability to perform the essential functions of his job or position will invoke the legal trigger; and further, that such a removal constitutes prima facie evidence that the removed Federal employee is entitled to disability retirement as “a matter of law”; and, finally, that 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) ); nevertheless, one must always expect a wide chasm between what the law “says”, and what the practical application of the law “means”.

Thus, before a Federal or Postal employee considers relying upon the Bruner Presumption for his or her Federal Disability Retirement application, a careful analysis of the efficacy of such reliance upon the legal presumption should be scrutinized and cautiously analyzed.  First, however, let us be clear.  To borrow an oft-worn Shakespearean phrase:  It is better to be, than not to be, just as it is better to have the Bruner Presumption than not.  However, the problem of possession is that it will often lead to loss of vigilance — similar to the proverbial story regarding the underachiever of the young man who comes from wealth and social advantages.  It is precisely because of the lull of the Bruner Presumption and what it portends, that caution must be exercised in the assertion of the Bruner Presumption.

To begin the analysis, we must first review the existent elements of the Bruner Presumption:

Required Element #1:  A Federal or Postal Worker is removed, and the removal is based upon one’s medical inability to perform one or more of the essential elements of one’s job (in subsequent cases, of course, there has been an extension of the presumption, where 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).  But for our present purposes, for this discussion, let us hypothesize a clearly-established  removal by a Federal agency, of an employee, which indicates that it was because of the medical inability to perform one’s job that formed the foundational basis of the removal.

Leads to Element #2:  Such a removal constitutes evidence which is prima facie (Latin for, “On the face of it”, or on a first appearance) and essentially referring to a fact which is presumed to be the case, unless it is otherwise disproven.  Thus, in a Federal Disability Retirement case, the fact of an agency removal based upon a medical inability to perform one’s job leads to a legal presumption that one is entitled to disability retirement benefits unless otherwise disproven.  On its face, then, there is a presumption that one is entitled to Federal Disability Retirement benefits when a person is removed for his or her medical inability to perform one or more of the essential elements of one’s job.

Results in Element #3:  Because the Disability Retirement presumption of approval can be “disproved”, the burden of proving the negative logically shifts from the Federal or Postal employee, over to the entity which must disprove it:  The U.S. Office of Personnel Management.

Now, as to each, let us perform the proper analysis and evaluation in order to arrive at an accurate assessment.

 A.  The medical removal.  The spectrum of language can range from the obviously explicit, to the “questionable at best” range, and it is therefore incumbent upon the Federal or Postal employee to fight where necessary, and insist when appropriate, for the insertion of language which will increase one’s chances on a probability scale to enhance triggering the presumption.  Thus, if a proposed removal states that the Federal or Postal Worker is being removed for his or her medical inability to perform the essential duties of the position, then there is little to wrangle over, precisely because such precision of language will unquestionably invoke and trigger the Bruner Presumption.  On the other hand, if language merely implies that the removal is based upon one’s medical condition, there may be difficulties down the road — especially if one’s Federal Disability Retirement application is denied at the Initial Stage of the application, then again at the Reconsideration Stage at the U.S. Office of Personnel Management, and one is therefore forced to file an appeal to the U.S. Merit Systems Protection Board.  There, you will be required to persuade and convince the Administrative Judge that the language contained in the obfuscated content of the removal letter leads to a reasonable inference that should trigger the Bruner Presumption.  In the end, that which is explicit is obviously preferable to an implied administrative action.  Additionally, it goes without saying that the decision to remove the Federal or Postal employee should be consistent with the language contained in the proposal of removal.  A sleight of hand in a bait-and-switch scheme is not unheard of by Federal Agencies and the U.S. Postal Service.

B.  Evidence which triggers a presumption would obviously be that factual basis which naturally results in the so-called Bruner Presumption.  But what does all of that mean?  What, in practical terms, does a presumption lead to, and if one has it, in what way does it result in being entitled to Federal Disability Retirement benefits from the U.S. Office of Personnel Management?  First, the possession of certain elements will lead to a domino effect of subsequent triggers.  Thus, once it has been established that one is in possession of a removal action from the Federal agency, and the removal action was based upon one’s medical inability to perform the essential elements of one’s job, then there is a “presumption” — i.e., an act of acceptance that it is true — that one is entitled to Federal Disability Retirement benefits “as a matter of law”.  But be careful, here — for, the crucial point of reference will depend upon the establishment of what the “it” is, as in, when OPM or the MSPB Administrative Judge must accept that “it” is true, what is the “it” that we are referring to?  Presumably, the “it” refers to the fact that the medical condition for which one has been removed is “true”.  But if the medical condition and the provable documentation which supports the existence and impact of the medical condition are insufficient, then the fact that the agency has removed the Federal or Postal employee because of the medical condition may become neutered and irrelevant.  The circularity of such a problem is the crux of the issue with the Bruner Presumption:  It in no way lessens the burden of persuasion on the part of the Federal or Postal employee who has the Bruner Presumption to prove one’s case.  Thus, whether one is removed for one’s Medical Inability to perform the essential elements of one’s job, or for some other reason, the Federal or Postal employee filing for Federal Disability Retirement benefits must still prove all of the tripartite elements which form the essence of a Federal Disability Retirement application:  The existence of a medical condition; the impact upon one’s positional duties in the Federal job; and the nexus between the former and the latter.

C.  What does it mean to state that 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, once the Bruner Presumption is triggered?  On a theoretical level, it would have the greatest meaning in the following hypothetical:  OPM denies a Federal Disability Retirement application both at the Initial Stage and the Reconsideration Stage; the Federal or Postal employee files an appeal to the Merit Systems Protection Board; a hearing is held; the Administrative Judge declares and informs the parties that the Bruner Presumption applies; OPM offers nothing more — no argument, no testimony, nothing; the record is closed and the Administrative Judge makes a decision.  Presumably, the Federal or Postal employee in such a hypothetical would win the case.  But again, there is a built-in caveat — for it is also quite likely that the Administrative Judge will act sua sponte (yes, the ghost of William F. Buckley still lives, where we all like to drop Latin phrases to appear erudite and obnoxious) and review the medical evidence for sufficiency regardless of the Bruner Presumption.

As an aside, there is the further question of what it could actually mean for the burden of production to “shift” to OPM.  Since OPM is not a medical facility, in practical terms this means that they engage in “proof by negative inference”  — meaning, it is time to play hardball law.  They will essentially attempt to undermine the credibility of the doctor through cross examination; question the integrity of the Federal or Postal employee by pointing out other work that the employee has been seen to engage in; show what Supervisors and coworkers have said about the employee; and other evidence which often have little or nothing to do with the medical condition itself.  In short, the law allows that OPM can meet its burden of production by demonstrating a lack of objective medical evidence providing a reasoned explanation of how certain aspects of a particular condition render the employee unable to perform specific work requirements. Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995).

There is, additionally, a further step involving the Bruner Presumption.  If OPM produces the rebuttable evidence through negative inferences, the appellant then must come forward with evidence to rebut OPM’s assertion that he or she is not entitled to Federal Disability Retirement benefits.   We have thus a back-and-forth interplay:  Presumption; rebuttal of the presumption; rebuttal of the rebuttal.  The Board then considers the totality of the evidence in deciding the Federal Disability Retirement issue, including objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, evidence relating to the effect of the applicant’s condition on his or her ability to perform in the grade or class of position last occupied, and evidence that the applicant was not qualified for reassignment to a vacant position at the same grade or level as the position the Federal or Postal employee last occupied. (See, e.g., Booth v. Office of Personnel Management, 99 M.S.P.R. 13 (2005).  Note the following, however:  Notwithstanding the shifting burdens of production, however, the appellant retains the burden of persuasion at all times. Trevan, 69 F.3d at 527.

What does this all mean?  For, what good is the legal presumption triggered by Bruner, if the burden of persuasion is always retained by the appellant?  One would expect that a legal presumption which asserts that a Federal or Postal employee is entitled to Federal Disability Retirement benefits “as a matter of law”, would be a difficult one to overcome.  However, just when you thought that the right hand giveth, the left hand seemingly taketh away.  For, if the U.S. Office of Personnel Management can undermine a legal presumption — one which raises the entitlement of Federal Disability Retirement benefits as a “matter of law” — merely by conveying a series of negative inferences, then how valuable or effective can the presumption be in the first place?  One way to look at it is as follows:  The legal burden of proof is one of preponderance of the evidence — meaning that the Judge, after reviewing the evidence in its entirety, will find for the Federal or Postal Worker filing for Federal Disability Retirement benefits if it appears to be more likely than not.  That burden of proof is a fairly low one.  As such, in cases where the scale is nearly equally balanced, having the Bruner Presumption may well be enough to tip the scales of justice in favor of the Federal or Postal disability retirement applicant.  How should one NOT view the Bruner Presumption?  By relying upon it too severely, at the expense of submission of sufficient medical documentation.  Thus, in the end, the Bruner Presumption should be viewed as a legal advantage utilized after one has prepared one’s Federal Disability Retirement packet in as thorough and complete a manner as if no such presumption existed.  Then, upon completion of the Federal Disability Retirement packet, the added-advantage should be asserted.

Whether one is removed for one’s medical inability to perform the essential elements of one’s job or not, eligibility for Federal Disability Retirement benefits from the U.S. Office of Personnel Management should be established through careful and concise compilation of one’s case.  The burden of proof must always be met by the applicant, and utilizing the narrow legal maneuver is merely one mechanism from a conglomerate of legal tools which should be utilized with care and discretion.

Posted:  07/09/2013

About the Author

Robert R. McGill is an attorney who specializes in federal disability retirement, a practice area he dedicates 100% of his time helping Federal and Postal workers secure their disability retirement benefits under both FERS and CSRS. For more information about his legal services, publications and forum, please visit his CSRS and FERS Disability Retirement Website.

Federal Employees Should Be Aware of Options When to Receive Social Security Benefits – Part I

June 26, 2013
Edward A. Zurndorfer, Certified Financial Planner

As more and more of the “baby boomers” (individuals born between 1946 and 1964) retire, the decision of when to start receiving Social Security retirement benefits, and on whose benefits (their own, a current spouse’s, or a former spouse’s) they will apply for, will need to be addressed. In a series of columns discussing strategies for receiving Social Security retirement benefits, this column discusses the “do-over” option.

As a review, an individual can collect a Social Security retirement check provided the individual has at least 40 credits of Social Security. This retirement benefit may be collected as early as the first full month after the month the individual becomes age 62. But if the individual starts collecting starting when they are age 62, the retirement benefit will be permanently reduced. The earliest age an individual can collect a full Social Security retirement benefit is their full retirement age (FRA). FRA depends on what year an individual was born. The following table summarizes FRA by year of birth and the portion of the full retirement benefit (claimed starting the month an individual reaches FRA) that an individual will receive if the benefit is claimed starting the first full month after the individual becomes age 62.

As more and more of the “baby boomers” (individuals born between 1946 and 1964) retire, the decision of when to start receiving Social Security retirement benefits, and on whose benefits (their own, a current spouse’s, or a former spouse’s) they will apply for, will need to be addressed. In a series of columns discussing strategies for receiving Social Security retirement benefits, this column discusses the “do-over” option.

As a review, an individual can collect a Social Security retirement check provided the individual has at least 40 credits of Social Security. This retirement benefit may be collected as early as the first full month after the month the individual becomes age 62. But if the individual starts collecting starting when they are age 62, the retirement benefit will be permanently reduced. The earliest age an individual can collect a full Social Security retirement benefit is their full retirement age (FRA). FRA depends on what year an individual was born. The following table summarizes FRA by year of birth and the portion of the full retirement benefit (claimed starting the month an individual reaches FRA) that an individual will receive if the benefit is claimed starting the first full month after the individual becomes age 62.

Full Retirement Age (FRA) by Year of Birth and Percentage Amount of Full Retirement Benefit Payable at Age 62



Until December 2010, the “do over” strategy allowed individuals to collect reduced Social Security retirement benefits starting as early as age 62 and, at any point up to age 70, “withdraw” their application for benefits, thereby stopping their monthly Social Security retirement benefit. Recipients could then repay all of their accumulated monthly benefits they had received to that point (without penalty and interest), and then at any time restart their benefits at a higher rate. The following example illustrates:

Frank was born Feb. 1, 1943. His FRA is age 66. In early 2005 Frank made the decision to receive his Social Security monthly retirement benefit. His monthly benefit was reduced by 25 percent as a result of starting his Social Security monthly retirement benefit at age 62. By the time Frank reached FRA in 2009, he had collected a total of $100,000 in Social Security retirement benefits. But in early 2009 after selling his principal residence for a profit, Frank repaid to the Social Security Administration the $100,000 in total benefits he had received to date. As a result, Frank’s Social Security benefits were increased by 25 percent when he restarted his monthly benefit in late 2009.

Although these repayments often exceeded over $100,000, before 2010 repaying the Social Security Administration was significantly cheaper than buying an immediate annuity from an insurance company that would generate the same amount of guaranteed income. The “do over” strategy essentially amounted to an “interest-free” loan from the Social Security Administration.

But effective Dec. 1, 2010, the Social Security Administration stopped the “do-over” policy. Under new Social Security Administration regulations that took effect in December 2010, an individual can repay benefits only once in a lifetime, and it must be within 12 months of first claiming benefits. If an individual changes their mind 12 months or later after they initially started their benefits, then they cannot take advantage of the “do over” strategy (“withdrawing” their application).

The question then becomes: Are those individuals who started collecting Social Security retirement benefits starting after 2010 before their FRA and have collected these benefits for more than 12 months out of luck with respect to the “do over” strategy? The answer: Not necessarily.

There is another little known Social Security Administration option that allows individuals who have reached their FRA to voluntarily suspend – but not repay- the Social Security benefits they are receiving. Besides suspending their own benefits, the suspension of benefits includes family benefits received based on their earnings records, such as spousal and children benefits. The suspended benefits earned delayed retirement credits equal to eight percent per year for each year they postpone collecting their benefits until age 70. Consider the following example:

Jean is entitled to a Social Security retirement monthly benefit of $1,600 at her FRA of 66. Jean started receiving her benefit at age 62 at a reduced (25 percent) amount of $1,200. At age 66, Jean contacts the Social Security Administration to suspend her monthly benefit payments. Putting aside any cost-of-living adjustments (COLAs) between ages 62 and 70, Jean’s monthly benefit will increase by eight percent for each year Jean does not receive a benefit until age 70. If Jean decides to reapply for her monthly benefit at age 70, her benefit will increase by 32 percent (four years times eight percent per year), boosting the benefit to 99 percent of what the benefit would have been if she had started collecting these benefits at her FRA.

Here is how the math works: 75 percent (reduced benefits at age 62) times 132 percent (delayed retirement credits from ages 66 through 70) equals 99 percent. For Jean, this means a monthly benefit at age 70 of $1,584 (132 percent times $1,200). Had Jean started collecting her benefit at age 66, her monthly benefit would have been $1,600.

$1,584/$1,600 = .99

Additional Considerations Before “Withdrawing” An Application Within the First 12 Months

Before making a decision to “withdraw” an application within the first 12 months of initially receiving benefits, there are some things individuals need to know about what will happen if they withdraw their application, including:

  • An individual who “withdraws” an application must repay all the Social Security retirement benefits based on their retirement application. The repayment also includes any benefits a spouse, a dependent parent or children received based on the individual’s Social Security retirement benefit. Anyone who received benefits based on the individual’s benefits must also consent – in writing – to the “withdrawal” of application.
  • Money withheld from the Social Security retirement checks must be repaid. Money withheld includes:  (1) Medicare Part B and Part D premiums (for individuals age 65 and older); (2) Voluntary federal income tax withholding for all years prior to the current year; and (3) Garnishments.
  • Those individuals who are already entitled to Medicare benefits may also choose to withdraw their Medicare coverage, but they do not have to.

How to “Withdraw” An Application

For those individuals who are within the first 12 months of receiving their Social Security monthly retirement benefits, they can withdraw their application by filling out and submitting Social Security Form SSA-521. Included on Form SSA-521 must be a reason for withdrawing the application. Once the Social Security Administration receives Form SSA-521, they will then notify the applicant as far as how much in total benefits that needs to be repaid.

How to “Suspend” Social Security Retirement Benefits

For those Social Security benefit recipients who are too late for “withdrawing” their application, they can suspend their benefits once they reach FRA. They may do so by simply contacting the Social Security Administration at 1-800-772-1213 and state they want to suspend their benefits. Note that a suspension of benefits cannot occur until the recipient has reached FRA. They can restate their monthly benefits at any time thereafter by contacting the Social Security Administration.

Posted:  06/26/2013

About the Author

Edward A. Zurndorfer is a Certified Financial Planner, Chartered Financial Consultant, Chartered Life Underwriter, Registered Health Underwriter, Registered Employee Benefits Consultant and Enrolled Agent in Silver Spring, MD — and the owner of EZ Accounting and Financial Services, an accounting, tax preparation and financial planning firm also located in Silver Spring, MD.  Zurndorfer is also is an instructor at federal employee retirement seminars throughout the country and writes numerous columns and books on federal employee benefits.

The 5-Year Rule: Keeping Your Federal Health Benefits and Life Insurance After Retirement

June 18, 2013

A couple of areas federal employees often overlook when planning for retirement are the “five year rules” that apply for keeping both Federal Employee Health Benefits (FEHB) and Federal Employee’s Group Life Insurance (FEGLI) after retirement.

Here are a couple of frequently asked questions regarding these issues from the Office of Personnel Management (OPM):

When can I keep my health insurance benefits after I retire?

You may continue your health insurance coverage only if you meet the following conditions:

  • Your annuity must begin within 30 days or, if you are retiring under the Minimum Retirement Age (MRA) plus 10 provision of the Federal Employees Retirement System (FERS), health and life insurance coverages are suspended until your annuity begins, even if it is postponed.
  • You must be covered for health insurance when you retire.
  • You must have been continuously covered by the Federal Employees Health Benefits (FEHB) Program, TRICARE, or the Civilian Health and Medical Program for Uniformed Services (CHAMPUS):
    • for five years immediately before retiring;or,
    • during all of your federal employment since your first opportunity to enroll;or,
    • continuously for full periods of service beginning with the enrollment that started before January 1, 1965, and ending with the date on which you become an annuitant, whichever is shortest.

What are the requirements to keep life insurance in retirement?

You can keep your basic life insurance in retirement if all of the following conditions are met:

  • You have coverage when you retire;
  • You have not converted coverage to an individual policy;
  • Your annuity begins within 30 days or, (However if you are retiring under the Minimum Retirement Age (MRA) plus 10 provision of the Federal Employees Retirement System (FERS) and you have postponed the commencing date of your annuity, health and life insurance coverage is suspended until your annuity begins) and,
  • You were insured for life insurance for the five years immediately preceding retirement or the full periods of service when coverage was available.

You can keep your optional life insurance in retirement if all of the following conditions are met:

  • You are eligible to continue your basic coverage; and,
  • You were covered by the optional life insurance for the five years immediately preceding retirement or the full periods of service when coverage was available, if less than five years.

We Got the Power

Miami APWU Retiree chapter president at a postal reform meeting
(l to r) Sardebra Wright (President, Miami Area Local Retiree Chapter of the American Postal Workers Union) Congressman Joe Garcia, Edith Owens (President, Miami Gardens Democratic Club) and Margie Lee (AARP Miami Gardens Director).


By: Sardebra Wright, President

At an early age, my mother drilled into my siblings and my head to always fight for our rights and for what is right. It is something that I will always live by. We all have an assignment on this earth and every day we should do our best to achieve that assignment, including improving our quality of life. I was forced out of the postal service on disability in 2009 under the NRP program which has since been dismantled. There is a class action suit that will yield cash settlement to be divided by everyone who was taken advantage of. It’s unfortunate that the postal service mistreats their employees and retirees. At this very moment Congress must be forced to act on our behalf. Many retirees don’t understand how changes will affect us, but they will. In 2006, Congress passed a bill requiring the postal service to pre-fund retiree health benefits 75 years in advance. We are the only agency, government or private held to that impossible standard. And again all eyes are upon the retiree.

Most employees are unaware of what happens to their pension when they retire. If you retire on disability, you are not subject to a postal penalty. The accepted retirement age at the postal service is 62 and if you apply for voluntary retirement you receive a 5% penalty for each year short of age 62. Did you know that the age for full social security depends on the year you were born? I was born in 1957 and my full social security age is 67 years and 6 months. So if I apply for social security benefits at age 62, I will not receive the full amount and I won’t be able to retrieve that shortfall when I reach the age of 66½.

Additionally, when you retire on disability, you are told continuously to apply for social security disability. Once you are approved, your postal pension is offset by 100% the first year and by 60% every year after that. In other words, we don’t receive our entire postal pension. You will get social security disability and 40% of your postal pension. Postal employees get a pretty raw deal.

H.R. 2748 also known as the “Postal Reform Act of 2013” would weaken the postal service; jeopardize postal jobs and retirement benefits for future and current retirees. This bill thought up by Representative Issa would force an increase in our healthcare contributions. When you’re on a fixed income you usually live on a budget and sometimes slight changes to that budget can cause big adjustments. This is why we have to get Congress to understand how their actions affect us. We have to put a face on the problem, so when our legislators make decisions they see us not words or numbers on paper, but people. We are making appointments with legislators and asking if we can discuss postal reform with them. We are fighting.

The time has come to stop being a victim because if we don’t help ourselves we will become volunteers. Frederick Douglass said “if there is no struggle, there is no progress. Power concedes nothing without demand, it never has and it never will”. We have to demand what is ours. We worked and paid for these benefits and the time has come to take back our power.