Agency Removal for Medical Inability and FERS Disability Retirement

Receiving a proposed removal notice for medical inability while your FERS disability retirement application is pending does not itself trigger the Bruner presumption. If the agency later separates you for medical inability, that separation can create a prima facie case in your disability appeal and shift the burden of production to OPM.

How Proposed Removal Works

Under 5 C.F.R. Part 752, a federal agency can propose to remove an employee who is unable to perform the essential functions of their position due to a medical condition. The agency generally gives at least 30 days' advance written notice, subject to exceptions, and a reasonable time to answer that is not less than 7 days. It then issues a final decision. The separation code on your SF-50 will typically show "removal for medical inability to perform."

The proposed removal process runs on a separate track from your disability retirement application. Your agency's HR office handles the removal; OPM handles the disability claim. They don't coordinate timing, which means you can receive a proposed removal while your disability application is still sitting in the Boyers, PA processing queue.

The Bruner Presumption: What Changes

Under Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993), when a federal agency separates an employee for medical inability to perform their duties, that agency action creates a prima facie case — a presumption — that the employee is entitled to FERS disability retirement. The burden of production shifts to OPM, which must produce evidence rebutting the presumption. You retain the ultimate burden of persuasion.

This is a significant strategic advantage. Without Bruner, you carry the full burden of proving entitlement by a preponderance of the evidence. With it, OPM has to come forward with evidence rebutting the presumption. If OPM fails to produce that evidence, disability retirement must be granted. If OPM does produce rebutting evidence, the presumption drops out and the Board weighs the full record to decide whether you proved entitlement by a preponderance of the evidence.

The Bruner presumption attaches when:

• Your agency separated you specifically for medical inability
• The SF-50 separation action reflects a medical removal
• The medical condition underlying the removal is the same condition in your disability application

When Bruner Doesn't Apply

OPM won't automatically grant the presumption in every case. If you were removed for misconduct or performance reasons and later negotiated a settlement agreement that changed your separation code to "medical inability," OPM scrutinizes whether the original removal was genuinely medical. Under MSPB case law, the presumption doesn't attach if the medical separation was a post-hoc characterization of what was actually a conduct or performance action.

Similarly, if you resigned voluntarily and later claimed the resignation was effectively a medical separation, OPM is unlikely to apply Bruner. The presumption requires a genuine agency determination that your medical condition made continued service impossible.

Responding to a Proposed Removal

If you receive a proposed removal for medical inability, your response should do two things simultaneously:

Protect your employment rights. Follow the response deadline in your notice; the ordinary adverse-action procedure allows a reasonable time to answer, not less than 7 days. Your response can challenge the removal on the merits, propose alternative accommodations, or negotiate the terms of separation. An attorney or union representative can help here.

Build your disability retirement record. The proposed removal itself becomes evidence in your disability claim. Make sure your response includes or references the same medical documentation that supports your FERS disability application. If OPM has already denied your initial application, the agency removal strengthens your reconsideration — you can now invoke Bruner to shift the burden.

After Removal: Filing Strategy

Once removed for medical inability, your SF-50 documents the separation. If your disability application is still pending at OPM, submit a copy of the SF-50 as supplemental evidence and explicitly invoke the Bruner presumption in your cover letter.

If OPM has already denied your initial application, include the SF-50 and a Bruner citation in your reconsideration brief filed with the Legal Reconsideration Branch. If you're past reconsideration and at the MSPB stage, introduce the SF-50 as evidence at the hearing — the Administrative Judge is required to apply Bruner when the record supports it.

After Garland v. OPM (Fed. Cir. Apr. 22, 2026), OPM cannot rebut the Bruner presumption simply by claiming your medical evidence lacks objective test results. The Federal Circuit requires OPM to produce specific evidence showing you're not disabled — not just assert that your doctor's clinical evaluation wasn't backed by lab work.

The FERS Disability Denial Appeal Guide walks through the Bruner invocation process step by step, including how to document your separation for maximum evidentiary impact and how to structure the reconsideration brief when both a denial and a medical removal are in play.

See more United States guides →