Does OPM ever deny applicants the right to reconsideration? What do I do if that happens to me?

ANSWER: Yes. Until recently, any time OPM rejected a disability retirement application, it provided an initial decision from which an applicant could request reconsideration. Reconsideration provides an opportunity to point out to OPM its errors, thereby giving OPM a chance to correct those errors before making a final decision. In a process rife with errors, reconsideration is often critical to affording applicants due process of law.

Recently, OPM implemented a "pilot program" in which some applications are randomly short-circuited and sent directly to a final decision. These cases are foreclosed from the critical due process reconsideration step. If you have the misfortune of having your case randomly assigned to the "pilot program," your sole remedy will be a hearing at the MSPB, and under its rules you must start all over from square one in proving your entire case to a judge.

OPM wants to speed up its processing by sending some applications directly to a final decision, disallowing reconsideration. That would be fine so long as the only applications that are denied reconsideration are those that would be unlikely to benefit from reconsideration. This would require that OPM develop carefully drawn standards to determine which cases should be short-circuited and which should not. Unfortunately, OPM has no standards whatsoever for depriving applicants of their right to reconsideration. OPM denies this right by selecting cases at random. Random selection may be great for scientific experiments, but not for safeguarding people's rights.

This "pilot project" resulted in a recent disaster when a government lawyer who was disabled by AIDS dementia was erroneously denied disability retirement, and then was denied the right to reconsideration because his case had been randomly selected for the project. OPM's denial was based on several blatant errors, but once this man's case was randomly tossed into OPM's pilot project, his only recourse was an appeal to the Merit Systems Protection Board where he had to start all over again and prove his entire case to the judge. Despite the fact that he was himself an attorney, his dementia, together with the technical nature of MSPB proceedings, required him to retain me.

This particular case had a happy legal ending when OPM's representative recognized that his agency had committed a serious error. He prevailed on OPM to award my client disability retirement, and thereby avoided an MSPB hearing. Unfortunately, my client was not reimbursed for the legal fees that he had to expend to win his case. Although I applaud the efforts of the OPM representative in this case, I fault OPM for making serious errors in its decision and then eliminating the reconsideration process that would have allowed my client to correct those errors.

It is hard to understand how OPM could deny disability benefits to someone disabled by such a devastating illness as AIDS dementia, but it is even harder to understand how it could design a program that would randomly deprive such an obviously disabled person of the traditional right to reconsideration and force him into a costly and time consuming appeal. Hopefully, OPM will abandon the "pilot project" in its current form.

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