5 C.F.R. § 844.202

Agency-filed disability retirement applications

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(a) Basis for filing an application for an employee. An agency must file an application for disability retirement of an employee who has 18 months of Federal civilian service when all of the following conditions are met:

(1) The agency has issued a decision to remove the employee;

(2) The agency concludes, after its review of medical documentation, that the cause for unacceptable performance, attendance, or conduct is disease or injury;

(3) The employee is institutionalized, or the agency concludes, based on a review of medical and other information, that the employee is incapable of making a decision to file an application for disability retirement;

(4) The employee has no personal representative or guardian; and

(5) The employee has no immediate family member who is willing to file an application on his or her behalf.

(b) Agency procedures. (1) When an agency issues a decision to remove an employee and not all of the conditions described in paragraph (a) of this section have been satisfied, but the removal is based on reasons apparently caused by a medical condition, the agency must advise the employee in writing of his or her possible eligibility for disability retirement and of the time limit for filing an application.

(2) If all of the conditions described in paragraph (a) of this section have been met, the agency must inform the employee in writing at the same time it informs the employee of its removal decision, or at any time before the separation is effected, that:

(i) The agency is submitting a disability retirement application on the employee's behalf to OPM;

(ii) The employee may review any medical information in accordance with § 294.106(d) of this chapter; and

(iii) The action does not affect the employee's right to submit a voluntary application for disability retirement or any other retirement benefit to which the employee is entitled under FERS.

(3) When an agency submits an application for disability retirement to OPM on behalf of an employee, it must provide OPM with copies of the decision to remove the employee, the medical documentation, and any other documents needed to show that the cause for removal results from a medical condition. Following separation, the agency must provide OPM with a copy of the documentation of the separation.

(c) OPM procedures. (1) OPM will not act on any application for disability retirement filed by an agency on behalf of an employee until it receives the appropriate documentation of the separation. When OPM receives a complete application for disability retirement under this section, it will notify the former employee that it has received the application and that he or she may submit medical documentation. OPM will determine entitlement to disability benefits under § 844.203.

(2) OPM will cancel any disability retirement when a final decision of an administrative authority or court reverses the removal action and orders the reinstatement of an employee to the agency rolls.

Notes of Decisions

Cited in 15 cases (6 in the last 5 years), 1998–2024 · leading case: Wayne B. Harris v. Dep't of Vets. Affairs, 142 F.3d 1463 (Fed. Cir. 1998).

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Wayne B. Harris v. Dep't of Vets. Affairs, 142 F.3d 1463 (Fed. Cir. 1998). · cites it 3× “The question remains, however, whether under the settlement agreement and the applicable regulation, 5 C.F.R. § 844.202 , the DVA fulfilled its obligation to assist Mr.”

Winchester v. Off. of Pers. Mgmt., 449 F. App'x 936 (Fed. Cir. 2011). “It is noteworthy that 5 C.F.R. § 844.202 requires OPM to file a disability retirement application on behalf of an employee if the employee is incapable of making a decision to file the application.”

Stussy v. Off. of Pers. Mgmt., 662 F. App'x 972 (Fed. Cir. 2016). “Finally, Stussy argues that the agency failed to inform him that he may have been eligible to file a disability claim when it removed him as required by 5 C.F.R. § 844.202 (b)(1). Although the Board did not address this argument, on its face it has no merit.”

Anna Maciel v. Off. of Pers. Mgmt. (MSPB 2024). · cites it 8× “The appellant further argues that her employing agency failed to meet its burdens under 5 C.F.R. § 844.202 regarding her application for disability retirement.”

Oldanis Disotuar v. Off. of Pers. Mgmt. (MSPB 2024). · cites it 7× “He further argued that he was entitled to equitable tolling because the separation letter did not advise him of his right to file a disability retirement application, as required by 5 C.F.R. § 844.202 (b)(1). IAF, Tab 1 at 4, Tab 15 at 5-6.”

Johnston v. Off. of Pers. Mgmt., 413 F.3d 1339 (Fed. Cir. 2005). “1998) (interpreting 5 C.F.R. § 844.202 (a)). The one-year time period set in 5 U.”

Christopher Adams v. Off. of Pers. Mgmt. (MSPB 2024). · cites it 6× “4 We toll the deadline due to the employing agency’s failure to provide notice as required by 5 C.F.R. § 844.202 (b)(1). The administrative judge did not address the fact that DA failed to inform the appellant of the 1-year filing deadline.”

Howard L. Johnson v. Off. of Pers. Mgmt. (MSPB 2015). · cites it 5× “§ 8453 and the regulatory notice requirement is set forth at 5 C.F.R. § 844.202 (b)(1). There is no substantive difference between the CSRS and FERS statutes and regulations as applicable to this appeal.”

Camille Caesar v. Off. of Pers. Mgmt. (MSPB 2022). · cites it 2× “Pursuant to 5 C.F.R. § 844.202 (b)(1), when an agency 4 removes an employee covered by FERS and “the removal is based on reasons apparently caused by a medical condition, the agency must advise the employee in writing of his or her possible eligibility for disability retirement…”

Andrew Fullman v. Off. of Pers. Mgmt. (MSPB 2016). “5 C.F.R. § 844.202 (b)(1). However, the record reflects that the appellant was terminated for failing to disclose on his application that he previously had been removed for alleged misconduct.”

Jacquelyn Brooks v. Off. of Pers. Mgmt. (MSPB 2022). “1205 (b)(1), with 5 C.F.R. § 844.202 (b)(1). 6 We also agree with the administrative judge that the employing agency was not required to submit an application for disability retirement on the appellant’s behalf.”

Mike Kobey v. Off. of Pers. Mgmt. (MSPB 2023). “” 5 C.F.R. § 844.202 (c)(2). Further, “OPM may rescind a decision to allow an application for disability retirement at any time if OPM determines that the original decision was erroneous due to fraud, misstatement of fact, or upon the acquisition of additional medical or other…”

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