Bruner Presumption

InformedFED » Articles » Bruner Presumption

An adverse action may assist a federal employee in applying for FERS disability. This is generally referred to as the “Bruner Presumption”.

Federal employees faced with a removal based on medical inability should understand an agency action in this regard triggers the Bruner Presumption.  Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993).  The Bruner Presumption may prove a benefit to the employee if he or she applies for disability retirement under the Federal Employee Retirement System (FERS).  However, there is a common misperception by many, including many Human Resources Specialists, that the Bruner Presumption guarantees approval of a FERS disability application.  It does not.  But, it does shift the burden to the Office of Personnel Management (OPM).  Specifically, in such circumstances OPM has the more difficult  burden of disproving the applicant has a disability instead (5 CFR 831.502) of the applicant proving he does have a disability.  In essence, it is a “prima facie” case, in that, by having your Agency remove you based on inability to perform your job (essential functions), it is considered a valid case “on its face”.  But, not a guarantee nevertheless.  

The Merit Systems Protection Board (MSPB) has also held the Bruner Presumption also applies where “removal for extended absences is equivalent to removal for physical inability to perform where it is accompanied by specifications indicating that the decision to remove was based on medical documentation suggesting that the appellant was disabled and unable to perform her duties.” McCurdy v. OPM, DA-844E-03-0088-I-1 (April 30, 2004), citing as authority Ayers-Kavtaradze v. Office of Personnel Management, 91 M.S.P.R. 397 (2002).  In other words, even if the agency removes you for Absence(s) Without Leave (AWOL), the affected employee may still be able to obtain a Bruner Presumption if he can prove absences were due to physical inability to actually perform the duties of the position.  


BOOK A FREE CONSULTATION | WHAT WE DO | CONSULTING QUESTIONS | FEE STRUCTURE

The contents of this website (InformedFED.com) are intended to convey general information only and not to provide legal advice or opinions. Consultants at InformedFED are not attorneys. They are senior level practitioners of employee labor relations and EEO. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or employment advice in any particular circumstance or situation. The information presented on this website may not reflect the most current legal or regulatory developments. No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. InformedFED is comprised of independent senior level practitioners and consultants who are not employees of InformedFED.