One of the more usual types of federal employee retirement matters that our firm handles involves the representation of federal employees in the disability retirement process before various federal agencies and the Office of Personnel Management (OPM). Federal employees thinking about filing for disability retirement should consider the following issues as they debate whether or not to proceed with an application for disability retirement.
How Serious are the Federal Employee’s Medical Disabilities and are They Linked to Duties in Their Position Description?
When making a federal employee disability retirement decision OPM evaluates a federal employee’s continued ability to work with their medical condition in the context of the duties described in their position description. OPM uses the phrase “useful and efficient service in your current position” to describe the degree to which a federal employee can carry out their job duties. Basically, the issue is whether or not the medical issue or disability prohibits a federal employee from performing their current duties. This is distinguished from being too disabled to work any position.
If the medical disability is not considered serious enough, or not fully supported by medical documentation and evidence, then OPM may deny the disability retirement application. However, there is a lot that a federal retirement attorney can do to increase the chances of submitting a successful application.
How Long is the Medical Disability Expected to Last?
The duration of a medical disability is very important when OPM makes a disability retirement decision. OPM generally requires that a medical disability be expected to last at least 1 year in duration. When considering whether to file for disability retirement, it is important for a federal employee to consider the expected length of the individual’s medical disability. Disabilities with shorter durations can be problematic for federal employees in the disability retirement process and could result in the denial of the application.
Does the Federal Employee’s Case Fall Under the Bruner Presumption?
It is quite often the case that a federal employee may be facing removal or potential removal related to their disability. If so, that can provide strong support for approval of a disability retirement application by OPM. This is often referred to as the Bruner presumption, after the case of Bruner v. OPM. Essentially, the Bruner case stands for the proposition that if a federal agency removes a federal employee for the medical inability to perform their duties than the Agency must disprove an employee’s entitlement.
Can the Federal Employee Survive on a Reduced Annuity?
If a federal employee is considering filing for OPM disability retirement, it is important to understand that this type of retirement can provide a federal employee with a lower monthly retirement annuity in comparison to full retirement at full years of service and age. Therefore, we recommend that a federal employee consults with a financial advisor about the impact of a potentially reduced annuity before filing for disability retirement. The very good news is that an individual approved for disability retirement can generally work again in the private sector (or for state or other local governments) (not in other federal employment positions) and supplement their income (usually up to 80% of their prior salary) without losing their disability retirement income.
Are There Reasonable Accommodations that can be Made to Allow the Federal Employee to Continue to Work?
Sometimes a federal agency will work with an employee to provide them with a reasonable accommodation (RA) (i.e., change in duties, assignments, hours, telework or other adjustments) that can make the employee’s current position and medical condition workable and thereby avoid the disability retirement process. This, however, has its limitations.
As a part of the OPM disability retirement process, a federal agency is required to certify that it is unable to accommodate your disabling medical condition in their present position. The federal agency must also certify that it has considered a federal employee “for any vacant position in the same agency, at the same grade or pay level, and within the same commuting area, for which [you] qualified for reassignment.” Federal agencies typically do not have an issue with such certifications and generally assist federal employees who are seeking disciplinary retirement.
Does the Federal Employee have Medical Support for Disability Retirement?
For federal employees, proper medical documentation and evidence is the most important consideration when filing for disability retirement. We also find that physicians will usually help their patients in the disability retirement process. When OPM reviews disability retirement applications, they rely heavily on a federal employee’s medical evidence. As a result, physicians and their medical opinions are crucial in the disability retirement application process with OPM.
OPM will require physicians’ statements about a federal employee’s medical issues, and these physician statements can either make or break the potential success in the disability retirement application process. It is important for a physician to understand a federal employee’s position description and how their disabilities interfere with their duties. It is also not that uncommon for a federal employee to be told by their physician that they should consider disability retirement.
Does the Federal Employee Have Enough Time in Service to be Eligible for Disability Retirement?
Generally, most federal employees fall under FERS, which only requires 18 months of creditable federal service before one is eligible for disability retirement. For those in the CSRS system, then 5 years of federal service is required prior to eligibility. Most individuals fall under FERS and generally have the ability to file for OPM disability retirement.
Does the Federal Employee Have Time to File for Disability Retirement?
Federal employees must file for disability retirement within 1 year of separation from federal employment. This is critical. There are some very rare exceptions, but OPM must have a federal employee’s application in hand within that 1-year period or there is a substantial risk of denial on that basis alone.
Contact Us
If you are in need of assistance in the federal employee disability retirement process please contact our office at 703-668-0070 or through our contact page to schedule a consultation.
Changes to federal employee annuity rules have just been made. The United States Court of Appeals for the Federal Circuit, on October 10, 2025, issued a major new ruling in OPM v. Moulton, holding that the Office of Personnel Management (OPM) may only divide a federal retiree’s Federal Employees Retirement System (FERS) annuity supplement with a former spouse if a court order or divorce decree expressly provides for such a division. This new case is going to have a major impact on federal employee supplements.
The Moulton decision affirms the Merit Systems Protection Board’s (MSPB) interpretation of the law and rejects OPM’s broader approach previously adopted in 2016. Our federal retirement lawyers represent individuals facing annuity issues before OPM.
FERS Annuity Supplements
What are FERS annuity supplements? A Federal Annuity Supplement (often referred to as a FERS Supplement) is an additional payment provided to certain FERS retirees. It is designed to bridge the income gap between the time a federal employee retires and when they become eligible to receive Social Security at age 62. Many individuals ask why the FERS Supplement exists. The FERS Supplement exists because many federal employees retire in their late 50s (especially special-category employees) and the supplement helps ensure income stability until Social Security eligibility.
As a result, most federal employees are covered by FERS which is made up of three components: (1) Social Security benefits, (2) a Thrift Savings Plan (a retirement savings and investment plan similar to 401(k) plans available to private-sector employees), and (3) a basic annuity payment. For employees who retire before reaching age 62, the earliest Social Security retirement age, FERS also provides this retirement annuity supplement, which is a temporary payment meant to bridge the gap between retirement and Social Security eligibility.
Typically, OPM did not divide the FERS annuity supplement between a retiree and a former spouse, as the annuity supplement was not considered to be subject to division. However, OPM altered its approach in 2016. It began interpreting any court-ordered division of the basic annuity as implicitly including the annuity supplement, even if the order did not expressly say so. OPM applied this new interpretation retroactively, demanding repayment from retirees and reducing future supplement payments.
OPM v. Moulton Changes the Rules
In Moulton, the Federal Circuit addressed the question of whether OPM apportions the annuity supplement only when the terms of a court order expressly provide for the division of the supplement. Mr. Moulton, a federal retiree, challenged OPM’s revised policy after the agency began withholding part of his annuity supplement to pay his former spouse, despite his divorce order never mentioning the annuity supplement. He brought the case before the MSPB, which sided with him. OPM appealed to the Federal Circuit.
The Federal Circuit analyzed two key statutes: 5 U.S.C. § 8421(c), which governs the FERS annuity supplement and 5 U.S.C. § 8467(a), which authorizes OPM to comply with court orders in dividing retirement benefits “to the extent expressly provided for.” In ruling, the court ruled that the annuity supplement is not automatically part of a divorce supplement and cannot be split unless expressly provided for.
Contact Us
The Moulton case changes the previous OPM rules involving FERS annuity supplement cases. If you’re dealing with a divorce or retirement issue involving federal retirement benefits or need help drafting or interpreting a Court Order Acceptable for Processing (COAP), you should consult with a federal retirement lawyer who understands the intricacies of federal retirement law.
Our lawyers advise individuals and attorneys nationwide on how to properly divide federal retirement benefits, draft, review and revise COAPs and court orders, and ensure compliance with OPM requirements among other related federal benefits issues. Please contact us here or at (703) 668-0070 should you wish to schedule a time to discuss your individual federal retirement issues.
