HARVEY CHALLENGES OPM
IF YOU WANT TO KNOW WHAT IS WRONG WITH OPM’S DISABILITY RETIREMENT DIVISION, READ THIS INTRODUCTION TO THE 54 PAGE COMPLAINT WHICH I PROVIDED OPM’S INSPECTOR GENERAL 19 YEARS AGO.
SURE, THE PRESIDENT HAS CHANGED AND A FEW NUMBERS ARE OUT OF SYNC, BUT OVERALL IT IS AS RELEVENT TODAY AS IT WAS 19 YEARS AGO. IN THAT 19 YEARS, THERE HAS NOT BEEN A WHIT OF REFOM IN OPM’S DISABILITY RETIREMENT DIVISION.
Table of Contents
The Failure to Put People First at OPM
Our new President's theme is "putting people first." President Clinton has promised a new administration that will "reinvent" government and place the needs of the people whom this government was created to benefit above the self-serving, outdated bureaucracies that are eating our tax dollars. I believe one area that demands attention is the Office of Personnel Management (OPM). My experience over many years in representing government employees seeking disability retirement is that the only people who are ever put first at OPM are those in charge. Those seeking assistance from them are put last, if at all. It is time for a change, and it is time to insure that "putting people first" at OPM, means putting first those people who come for help, and not those who are supposed to be helping them.
My purpose here is to define and document how OPM officials wrongfully abridge the rights of government employees to disability retirement. I contend that this knowing violation of due process of law also constitutes an abuse of power, and that those government officials who are responsible certainly do not promote the efficiency of the service or the public good. Had these same officials been employed in private enterprise and engaged in such misbehavior they would have been fired long ago.
Congress established the right of qualified federal employees to disability retirement, and delegated the authority to administer the program to OPM. What should be a straightforward process of determining eligibility according to basic criteria spelled out by Congress in 5 U.S.C. 8337 has instead become a bureaucratic nightmare. What should be a process that assists disabled federal employees obtain rights provided by law has become an adversarial contest between them and government employees bent on denying that right. As it is currently administered, the disability retirement program serves neither the interests of the government nor those of the government employees whom it is supposed to benefit.
For years now, I have waged a private crusade directed at getting OPM officials to stop their systematic abuse of disability retirement applicants. These same OPM officials have continued to ignore the most rudimentary requests made on behalf of applicants, whether for a timely response to an application, or for the reasons for denying an application, or for them to respect my client's due process right to counsel.
Over time, I escalated the stridency of my language by putting my word processor into overdrive and casting my entreaties into the largest, boldest print possible. This tactic failed. Not once has any OPM official expressed a willingness to consider my pleas, nor taken a single step to correct the injustices pointed out. The record will reflect that, quite literally, there has never been a single reply to any complaint made by me on behalf of any client. Even by Washington standards, this is frightening.
My battle with the bureaucracy at OPM has in no way diminished my ability to win cases. I have continued to gain disability retirement for nearly every client I have represented. I have also never been openly criticized by OPM officials for my persistence. Instead, these OPM officials do nothing. They have made no attempt to respond, no attempt at reform. It was as if my letters never reached them, or were never opened or read, but simply thrown into the garbage; I fear this last option has been the one of choice.
The motivation behind the actions (and inactions) of these OPM officials is irrelevant. Irrespective of motive, their behavior is inexcusable and untenable. At a minimum it constitutes an abuse of governmental power, as well as a gross violation of due process of law.
Disability retirement is a right, not a handout or charity. It is a property right government employees pay for through direct payroll deductions and a very significant right at that. The government has entered into a contract with its employees so that if disability within the meaning of the law ensues, and the employee otherwise qualifies, then the employee has a right to a monthly disability retirement annuity. 
It is very important to see disability retirement as a contractual right and not as charity, welfare or any other kind of handout. Perceiving it as a right allows us to better understand that wrongfully taking it away or wrongfully delaying its receipt constitutes an actionable wrong. It is also important to see that the right to the disability retirement annuity does not have to be withheld forever in order to constitute a wrong. Wrongfully withholding it for any period for which it should not have been withheld constitutes an identical misdeed. Certainly, part of the contractual obligation is to pay qualified employees their annuities on time. For this and other reasons, wrongfully vitiating or delaying the right to disability retirement constitutes an abridgment of the employee's due process right to property, and cannot be tolerated.
I will demonstrate the veracity of the allegations made through reference to four (4) disability retirement cases currently pending before OPM. I represent all four of the applicants in these cases, and each has released me from the attorney-client privilege for the purpose of this report. All four of these cases have now been pending before OPM for well in excess of one year, and one for more than two years.
These four cases are merely exemplary of what goes on in myriad other cases at OPM. I know this because I have been involved in myriad other cases, and it has gone on in the majority of them. Clearly, this abuse, which has taken place in so many cases over so many years, has resulted in significant harm to many government employees, of which my clients are but a tiny sample.
OPM – Harvey Friedman Report to Inspector General 3-5-11
OPM IG REPORT-SAN 1993
OPM Inspector General to Harvey Friedman 3-12-93
OPM Inspector General to Harvey Friedman 5-17-11
OPM Inspector General Lattanzi to Harvey Friedman 7-13-111