OPM Disability Retirement Under FERS or CSRS: The 1-Year Statute of Limitations

The general rule for filing a federal disability retirement claim under the Federal Employees Retirement System (FERS) or the Civil Service Retirement System (CSRS), is that a federal or postal employee must file the disability retirement claim within one (1) year of being “separated from Federal Service.” This is legally established in 5 USC 8337(b), which specifically states that the Office of Personnel Management may receive and review a claim “only if the request is filed with the Office before the employee or Member is separated from service or within 1 year thereafter,” and at 5 CFR (“Code of Federal Regulations”) Section 844.201, “a request for disability retirement is timely only if it is filed with the employment agency before the employee or Member separates from the service, or with the former employment agency or OPM within 1 year thereafter”. This is the “statutory rule”, as explicitly stated in “the law”.

However, as with all laws, there can be exceptions, not only as stated in the statute itself, but also, as modified by a judge in federal court. It is important to know this last “modification” and “interpretation” of a law, precisely because such “organic interpretations” of the law are as much “law” as the law itself. The statute itself allows an exception to the “1-year rule” (that a federal or postal employee must file a federal disability retirement application under FERS or CSRS while employed by the federal government, or within one (1) year of being separated from the Federal Service) – that exception is that the 1-year statute of limitations may be waived by the Office of Personnel Management “if the employee or member is mentally incompetent on the date of separation or within 1 year thereafter, at which case the individual or their representative must file the application with the previous employment agency or the OPM within 1 year after the date the individual regains competence or a court appoints a trustee, whichever occurs first”. In simple, practical terms, this means that if a person, within the time necessary to apply for federal disability retirement benefits, is committed to a psychiatric institution, the 1-year rule does not begin until the person regains competence.

However, there is another exception to the 1-year rule, and it is this exception that is important to know about. There are many times when a federal or postal employee is never informed of their separation from the federal government or the postal service. Such individuals often follow a similar pattern or paradigm: a federal or postal employee is injured or medically unable to perform their job. He is determined eligible for Federal Workers’ Compensation benefits (Department of Labor, OWCP benefits under FECA) and remains in the Federal Service while receiving OWCP benefits. A couple of years pass. Maybe it will be more than a couple of years. The Agency, realizing that the Federal or Postal employee will not return, “separates” the individual from Federal Government or Postal Service service.

However, the problem occurs, and this problem occurs all too often, when the federal or postal employee is never informed of the separation. Why is this happening? Mainly, because the ones on the OWCP lists, after a while, are forgotten. At the same time, because the federal agency or Postal Service needs to fill the “job position” with a working person, they simply file a Standard Form 50 and separate the person from the Federal Service.

In fact, this is precisely what happened in the case of Johnston v. OPM, 413 F.3d 1339 (United States Court of Appeals for the Federal Circuit, 2005), in which the Court granted an additional exception to the 1-year rule, stating that the “one-year time period set forth in 5 USC Section 8337(b) arises with the agency notifying the employee that he or she has been terminated for medical reasons.” In addition, the Court in Johnston cited 5 CFR Section 831.1205(b)(1), which states that when an agency “issues a decision to discharge an employee… but the discharge is based on reasons apparently caused by a condition medical condition, the agency must inform the employee in writing of his or her possible eligibility for disability retirement.” Emphasis is added to the word “apparently” because a Federal Agency (and the Postal Service) often does not explicitly state that a person is being removed for a medical condition, despite all the facts and circumstances surrounding an Agency Federal or Postal removal of the employee clearly and irrefutably establishes such a basis.

Where does all this leave us? I receive numerous phone calls from people who have been on the lists of the Bureau of Workers’ Compensation, who have never applied for Federal Disability Retirement benefits under FERS or CSRS. Furthermore, they were never informed of their separation from the Federal Service. Said former federal or postal employee begins asking about filing federal disability retirement benefits because he or she is receiving indications that OWCP benefits will soon end. Such impending action on OWCP benefits will often prompt the former federal or postal employee to make some inquiries, and such inquiries often result in the discovery that he or she was separated from the Federal Service some years earlier.

Is it too late to apply for federal disability retirement benefits under FERS or CSRS? It all depends on the particular and unique facts and circumstances of each case. Whether a viable argument can be made in any particular case that an exemption from the “1 year rule” should be allowed depends on such unique facts and circumstances. Of course, it’s the best alternative to not having to make such an argument and instead applying for federal disability retirement benefits within one year of separating from federal service, or while still with the agency. To all federal and postal employees, a word of caution to the wise: stay on top of your own case; ensure and meet deadlines; apply for your benefits under FERS and CSRS in a timely manner. However, if you believe you were never informed of your separation from federal service, but you are entitled to federal disability retirement benefits, you should investigate. It may not be too late.