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Developments at OPM: Disability Retirement Granted Post-MSPB Appeal

Developments at OPM: On July 16, 2013, the Office of Personnel Management (OPM) reversed course and granted the disability retirement application of Christine Bruce. OPM's move came about as a result of the July 8, 2013, precedential decision by the Merit Systems Protection Board (MSPB) in Bruce v. Office of Personnel Management, 2013 MSPB 51.

Ms. Bruce had stopped coming to work in 1997 after suffering an incident of sexual harassment at work and was carried on leave without pay until July 19, 2004, when she was removed. Ms. Bruce's brother was named as her legal guardian on July 19, 2010, and filed her disability retirement application, asserting that she became mentally incompetent by July 19, 2004, because of medical conditions that rendered her unable to complete the application in a timely manner. OPM rejected the application as untimely filed, and an appeal was subsequently filed with the MSPB. The MSPB's Administrative Judge upheld OPM's decision.

However, the MSPB disagreed with its AJ and overruled OPM's decision. The MSPB noted that the statutory "1-year deadline may be waived if the employee is mentally incompetent at the date of separation or within 1 year thereafter and if the application is filed with OPM within 1 year from the date the employee is restored to competency or is appointed a fiduciary, whichever is earlier." Based on evidence provided by Ms. Bruce's witnesses and her psychiatrist, the MSPB concluded that Ms. Bruce was mentally incompetent during I-year period following her separation, that her application was filed within 1 year from the date her brother was appointed as her guardian, "and that therefore the statutory I-year time limit for filing her application for disability retirement must be waived. 5 U.S.C. § 8453."

Ms. Bruce is represented by Passman & Kaplan Founding Principal Edward H. Passman.

If you are a federal employee or applicant for federal employee retirement and wish to discuss your rights, please contact Passman & Kaplan, P.C. to request an initial consultation.

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