Last Updated on September 5, 2022 by FERS Disability Attorney
What does it mean to possess “of persuasive effect”? If a person argues in a debate for endless hours, and at the end of it all, various people from the watchful audience turn aside to one another and declare, “Well, he sure was persuasive, but I’m still going to vote for the other guy” — what can such a statement mean? If an acknowledgment of persuasion nevertheless results in an opposite conclusion, can one still maintain that there existed any degree of the very element which was supposed to modulate otherwise?
And legal precedents which must be applied — say, in a Federal Disability Retirement case, where the U.S. Office of Personnel Management is “required by law” to consider certain elements, such as under the Bruner case or the Simpkins case and subsequent case-law holdings which “mandate” that OPM consider the proffered evidence as cited by a Legal Memorandum — do they necessitate a certain outcome, or is it merely “persuasive but not determinative”, and what does that mean? Is it that the level of persuasion was just “not enough”, and while it might have come somewhat close, it just didn’t have that final “clincher” to put it over the goal line?
And if we know beforehand that “persuasive effect” won’t necessarily result in a “determinative impact”, do we just not try at all, or is the mere possibility of “tipping the balance in one’s favor” enough to try and attempt to persuade?
For Federal employees and U.S. Postal workers who suffer from a medical condition, and where preparing an effective Federal Disability Retirement application becomes necessary, the impact of a Legal Memorandum — prepared and submitted along with the Federal Disability Retirement “packet” — is like traveling with Google Maps guiding one into unfamiliar territory. Without it, the reviewing “specialist” at OPM will simply be presented with a stack of information with no indexing or cover sheet.
With it, the importance of persuasive effect is there to guide the OPM reviewer into seeing what is relevant and what is not; of the legal cases that are impactful and persuasive; and of the mandated requirements in applying the proper legal criteria, and not merely of empty arguments that seemingly possess of persuasive effect, but lead to conclusions otherwise left without direction.
Sincerely,
Robert R. McGill, Esquire
FERS Disability Retirement Lawyer
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