5 U.S.C. § 8455

Recovery; restoration of earning capacity

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(a)(1) If an annuitant receiving a disability retirement annuity from the Fund recovers from the disability before becoming 60 years of age, payment of the annuity terminates on reemployment by the Government or 1 year after the date on which the Office determines that the annuitant has recovered, whichever is earlier.(2) If an annuitant receiving a disability annuity from the Fund, before becoming 60 years of age, is restored to an earning capacity fairly comparable to the current rate of pay of the position occupied at the time of retirement, payment of the annuity terminates 180 days after the end of the calendar year in which earning capacity is so restored. Earning capacity is deemed restored if in any calendar year the income of the annuitant from wages or self-employment or both equals at least 80 percent of the current rate of pay of the position occupied immediately before retirement.(b)(1) If an annuitant whose annuity is terminated under subsection (a) is not reemployed in a position in which that individual is subject to this chapter, such individual is deemed, except for service credit, to have been involuntarily separated from the service for the purpose of subchapter II of this chapter as of the date of termination of the disability annuity, and after that termination is entitled to annuity under the applicable provisions of such subchapter.(2) If an annuitant whose annuity is terminated under subsection (a)(2)—(A) is not reemployed in a position subject to this chapter; and(B) has not recovered from the disability for which that individual was retired;the annuity of such individual shall be restored at the applicable rate under section 8452 effective the first of the year following any calendar year in which such individual’s income from wages or self-employment or both is less than 80 percent of the current rate of pay of the position occupied immediately before retirement.(3) If an annuitant whose annuity is terminated because of a medical finding that the individual has recovered from disability is not reemployed in a position in which such individual is subject to this chapter, the annuity of such individual shall be restored at the applicable rate under section 8452 effective from the date on which the Office determines that there has been a recurrence of the disability.(4) Paragraphs (2) and (3) shall not apply in the case of an annuitant receiving an annuity from the Fund under subchapter II of this chapter.(Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 568.)

Notes of Decisions

Cited in 18 cases (8 in the last 5 years), 2007–2026 · leading case: Daniel v. Off. of Pers. Mgmt., 245 F. App'x 969 (Fed. Cir. 2007).

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Daniel v. Off. of Pers. Mgmt., 245 F. App'x 969 (Fed. Cir. 2007). · cites it 2× “at 4 (citing 5 U.S.C. § 8455 (a)(2)). The AJ noted that Mr.”

Minney v. United States Off. of Pers. Mgmt., 130 F. Supp. 3d 225 (D.D.C. 2015). “Nor will this Court countenance OPM’s apparent argument that plaintiff cannot succeed on the merits of his due process claim because 5 U.S.C. § 8455 (a) prevents OPM from reinstating his benefits.”

Daniel v. Off. of Pers. Mgmt., 469 F. App'x 850 (Fed. Cir. 2011). · cites it 2× “OPM therefore determined, as mandated by 5 U.S.C. § 8455 (a)(2), that Daniel’s earning capacity had been restored and terminated his benefits as of June 30, 2006.”

Rodriguez v. Off. of Pers. Mgmt., 427 F. App'x 878 (Fed. Cir. 2011). · cites it 4× “” 5 U.S.C. § 8455 (a)(2). Although the record is not clear as to its source, it is undisputed that Rodriguez’s income for 2006 was $45,479.”

Burton v. Off. of Pers. Mgmt., 641 F. App'x 970 (Fed. Cir. 2016). · cites it 3× “5 U.S.C. § 8455 (a)(2). In Mr. Burton’s case, the 180-day period would have expired on June 30, 2012.”

Thomas v. Off. of Pers. Mgmt., 589 F. App'x 996 (Fed. Cir. 2015). · cites it 4× “OPM concluded that, because OPM never found that Thomas was recovered from her disability or restored to earning capacity after reemployment under 5 U.S.C. § 8455 (a)(2), and because she was not reemployed for five years, she was not entitled to claim the time that she received…”

Miguel J. Cortez, Jr. v. Off. of Pers. Mgmt. (MSPB 2016). · cites it 2× “The appellant argued that, pursuant to 5 U.S.C. § 8455 (b)(2), his disability retirement should have been restored on January 1, 2013, because in 2012 he earned less than 80% of the current rate of pay for the position that he occupied before retiring on disability.”

Green v. Opm (Fed. Cir. 2020). · cites it 2× “Under 5 U.S.C. § 8455 (a)(2), if a person receiving a FERS disability annuity has his or her “earning capacity” restored before turning 60, payment of the annuity termi- nates after the end of the calendar year in which earning capacity was restored.”

Alday v. Off. of Pers. Mgmt. (D.D.C. 2021). · cites it 2× “5 U.S.C. § 8455 (a)(2). For 2016, that rate of pay was $52,994—80% of which was $42,395.”

James Campbell v. Off. of Pers. Mgmt. (MSPB 2024). · cites it 2× “IAF, Tab 15 at 9, Tab 16 at 8-13; see 5 U.S.C. § 8455 (a)(2); 5 C.F.R. § 844.402 (a).”

Scott M. Burton v. Off. of Pers. Mgmt. (MSPB 2015). · cites it 3× “¶5 Under 5 U.S.C. § 8455 (a)(2), the annuity of a FERS disability annuitant who is restored to earning capacity before becoming 60 years of age terminates upon reemployment by the federal government or 180 days after the end of the calendar year in which earning capacity is…”

Lori Cline v. Off. of Pers. Mgmt. (MSPB 2023). “§§ 8337 (d), 8346(b) (containing relevant CSRS provisions), with 5 U.S.C. §§ 8455 (a)(2), 8470(b) (containing relevant FERS provisions); see James v.”

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