# Howard L. Johnson v. Office of Personnel Management

> Merit Systems Protection Board · April 24, 2015

URL: https://www.frixlaw.com/law-library/cases/2796542

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 24, 2015
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2796542

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

HOWARD L. JOHNSON, DOCKET NUMBER
Appellant, CH-844E-14-0449-I-1

v.

OFFICE OF PERSONNEL DATE: April 24, 2015
MANAGEMENT,
Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

George R. Carter, Esquire, Louisville, Kentucky, for the appellant.

Delores A. Saunders, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the Office of Personnel Management’s (OPM’s) final decision
dismissing his application for disability retirement as untimely filed. Generally,
we grant petitions such as this one only when: the initial decision contains

1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The U.S. Postal Service removed the appellant, a former nonpreference
eligible City Carrier, based on the charge of Absence Without Leave (AWOL).
Initial Appeal File (IAF), Tab 20 at 8 (Postal Service Form 50). The appellant
applied for disability retirement benefits under the Federal Employees Retirement
System (FERS) in June or July 2011 based on major depressive disorder, bilateral
plantar fasciitis, pes cavus with hammertoes, metatarsalgia, and diabetes mellitus.
He claimed that these conditions interfered with the performance of his duties
because they caused severe numbness, pain, and tingling in both feet. 2 See IAF,
Tab 5 at 22-23 (disability retirement application). Based on the Individual
Retirement Record (IRR) showing a removal date of February 20, 2010, OPM

2
Although OPM asserts that the appellant’s disability retirement application was dated
July 19, 2011, and received on July 25, 2011, the copy of the application provided in
the initial appeal file is dated June 7, 2011. See IAF, Tab 5 at 16, 22-23. We need not
resolve this discrepancy, however, because both dates fall well outside the 1-year filing
period ending on or about February 21, 2011. See 5 U.S.C. § 8453; see also infra ¶ 7.
3

dismissed the application as untimely filed outside the 1-year statutory time limit
established by 5 U.S.C. § 8453. IAF, Tab 5 at 4-5 (OPM reconsideration
decision), 7 (IRR), 16-18 (OPM initial decision). The appellant appealed OPM’s
decision, arguing that his application was timely filed because he was not
removed in February 2010 but was on leave without pay until at least August
2010, and, in the alternative, the filing deadline should be equitably tolled
because his employing agency failed to give him notice of his potential eligibility
for disability retirement and sent him misleading information about his
employment status. IAF, Tab 1 at 4-5, Tab 23 at 1-9.
¶3 The administrative judge affirmed OPM’s decision, finding that: the IRR
correctly reflected the appellant’s removal date of February 20, 2010; the July
2011 application for disability retirement was untimely filed; and equitable
tolling could not be invoked to waive the statutory filing deadline. IAF, Tab 24,
Initial Decision (ID) at 2-5. The appellant has petitioned for review of the initial
decision. Petition for Review (PFR) File, Tab 1. On February 11, 2015, the
Board issued a show cause order ordering the parties to submit additional
information regarding the appellant’s separation date and employment status in
2010. Id., Tab 3. Both parties timely responded. Id., Tabs 4-5.

The administrative judge correctly affirmed OPM’s decision finding that the
appellant’s removal was effective February 20, 2010, and that the disability
retirement application was untimely filed.
¶4 In its reconsideration decision, OPM explained that the IRR was
“[c]onclusive documentation” of the appellant’s removal date. IAF, Tab 5 at 5, 7.
The administrative judge agreed that the record evidence—including several
secondary documents reflecting a removal date of February 20, 2010, and a
January 15, 2010 medical record indicating that the appellant had “quit his
job”—demonstrated that the IRR was accurate and that he was removed effective
February 20, 2010. ID at 2-4; see IAF, Tab 5 at 36, 74, Tab 20 at 7. The
appellant maintains, however, that the employing agency did not process his
4

removal until August 19, 2010, rendering his July 2011 application for disability
retirement timely filed. PFR File, Tab 1 at 5.
¶5 The Board has jurisdiction to review the accuracy and completeness of the
IRR in the context of appeals from OPM final decisions that rely on them.
Conner v. Office of Personnel Management, 120 M.S.P.R. 670, ¶ 6 (2014), aff’d,
No. 2014-3129, 2015 WL 1061870 (Fed. Cir. Mar. 12, 2015). Like a Standard
Form 50, an IRR does not constitute the personnel action itself and does not on its
face control an employee’s status and rights. See Fox v. Department of the Army,
120 M.S.P.R. 529, ¶ 22 (2014). Rather, we must look to the totality of the
circumstances to determine the date and nature of the appellant’s separation. See
id.
¶6 The initial appeal file contained several documents, dated between April
and September 2010, indicating that the appellant’s removal was effective
February 20, 2010. See IAF, Tab 5 at 7 (IRR dated September 23, 2010), 74
(notice of indebtedness dated September 29, 2010), Tab 20 at 7 (notice of
removal or separation for disability dated April 16, 2010), 8 (Postal Service Form
50 processed August 19, 2010). In addition, the record contained letters dated
July 29, 2010, from the Thrift Savings Plan (TSP) and August 5, 2010, from the
employing agency, both of which indicated that the appellant was still employed
in the federal service. IAF, Tab 5 at 13-15. The appellant represented before the
administrative judge that the employing agency “never advised [him] about the
change of his status[.]” IAF, Tab 23 at 7.
¶7 Out of an abundance of caution to ensure that the IRR and the other
secondary documents correctly reflected the appellant’s removal date, we ordered
the parties to submit additional information and evidence regarding the
appellant’s removal and employment status during 2010. PFR File, Tab 3. In
response to the show cause order, both parties submitted, among other things, a
January 19, 2010 notice of removal advising the appellant that he would be
removed from federal service no sooner than 30 calendar days from receipt of the
5

notice based on the charge of AWOL from August 1, 2009, through the date of
the notice. Id., Tab 4 at 5, Tab 5 at 31. The appellant also submitted an affidavit
wherein he attested that he received the notice of removal on January 19, 2010. 3
PFR File, Tab 5 at 4. Based upon this record, we find no reason to disturb the
administrative judge’s finding that the IRR correctly reflected that the appellant
was removed effective February 20, 2010, and that his July 2011 application for
disability retirement thus was untimely filed. See ID at 4.

The administrative judge correctly determined that equitable tolling of the
statutory filing deadline is unavailable under the circumstances presented here.
¶8 The appellant argued below that, even if his removal was effective
February 20, 2010, he was entitled to equitable tolling of the statutory time period
for filing a disability retirement application because the employing agency misled
him regarding his employment status and failed to give him notice of his potential
eligibility for disability retirement. IAF, Tab 23 at 7-9. The administrative judge
rejected these arguments, finding that equitable tolling was inconsistent with
5 U.S.C. § 8453, which provides for waiver of the 1-year filing deadline only
where an employee is mentally incompetent at the date of separation or within 1
year thereafter. ID at 4-5. On review, the appellant renews his argument that he
is entitled to equitable tolling of the statutory filing deadline because his
employing agency failed to satisfy its regulatory duty to notify him of his
potential eligibility for disability retirement. 4 See PFR File, Tab 1 at 6-8.

3
The appellant’s admission of his receipt of the January 19, 2010 notice of removal is
in direct contrast to his representations below that he was “never advised” about his
change in employment status until August 2010. Compare PFR File, Tab 5 at 4, with
IAF, Tab 23 at 7.
4
The appellant refers to 5 U.S.C. § 8337(b) and 5 C.F.R. § 831.1205(b)(1), which are
applicab le to employees covered by the Civil Service Retirement System (CSRS). IAF,
Tab 23 at 5, 8; PFR File, Tab 1 at 6. The appellant, however, was covered by FERS.
IAF, Tab 20 at 8 (box 28). As such, the statutory limitations period applicable to the
appellant is set forth at 5 U.S.C. § 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. Compare 5 U.S.C.
6

¶9 There are three bases for waiving a filing deadline prescribed by statute or
regulation: (1) the statute or regulation specifies circumstances for a waiver;
(2) an agency’s affirmative misconduct may preclude enforcement of the deadline
under the doctrine of equitable estoppel; and (3) an agency’s failure to provide a
notice of rights and the applicable filing deadline may warrant a waiver of the
deadline, if statute or regulation requires that such notice be given. Jeter v.
Office of Personnel Management, 71 M.S.P.R. 495, 498 (1996). First, although
the relevant statute, 5 U.S.C. § 8453, provides that waiver of the deadline may be
allowed if the employee was mentally incompetent at the date of separation from
service or within 1 year thereafter, the appellant does not allege mental
incompetence. See PFR File, Tab 1. Second, the appellant does not allege that
the employing agency engaged in any affirmative misconduct. 5 See id. He does
argue, however, that the third basis for waiver of a filing deadline applies here
because the employing agency had a regulatory duty to provide him notice of his
disability retirement option but failed to do so. See id. at 6-9.
¶10 It is true that, when an agency removes a FERS employee and the removal
is based on reasons apparently caused by a medical condition, the employing
agency is required to inform him of his possible eligibility for disability
retirement and of the time limit for filing an application. 5 C.F.R.
§ 844.202(b)(1). The current record is not sufficiently developed to determine
whether the employing agency was required to afford the appellant notice under

§ 8337(b), with 5 U.S.C. § 8453; compare 5 C.F.R. § 831.1205(b)(1), with 5 C.F.R.
§ 844.202(b)(1).
5
Below, the appellant alleged that the agency misled h im and failed to provide notice
of his removal. See IAF, Tabs 1, 23. The administrative judge found that the appellant
failed to present any evidence that the employing agency intended to induce or trick
him from timely filing his application for a disability retirement. ID at 4-5. On review,
the appellant does not appear to challenge, and we discern no basis to disturb, this
findin g. See PFR File, Tab 1.
7

5 C.F.R. § 844.202(b)(1) or whether it did so. 6 The Board has held, however, that
even if the employing agency was required by 5 C.F.R. § 844.202(b)(1) to inform
the appellant of his potential disability retirement option, the agency’s failure to
do so would not provide a basis to waive the statutory 1-year filing deadline
under 5 U.S.C. § 8453. King v. Office of Personnel Management, 112 M.S.P.R.
522, ¶ 14 (2009).
¶11 The appellant urges us to follow Winchester v. Office of Personnel
Management, 449 F. App’x 936, 938 (Fed. Cir. 2011), a nonprecedential U.S.
Court of Appeals for the Federal Circuit decision finding that equitable tolling of
the 1-year statutory filing period to apply for disability retirement is available
where the employing agency fails to give an employee, whose removal is based
on reasons apparently caused by a medical condition, notice of his potential
eligibility for disability retirement as required by OPM regulations. 7 See PFR
File, Tab 1 at 6-8. While the Board is not bound by nonprecedential Federal
Circuit decisions, Mills v. U.S. Postal Service, 119 M.S.P.R. 482, ¶ 8 (2013), we
are bound to follow the unambiguously expressed intent of Congress, Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43
(1984). For the reasons set forth below, we find that we have no authority to

6
The appellant alleges that he was off work beginning in 2009 for medical reasons, and
the record contains medical treatment records from 2008 through 2010, an August 13,
2010 Social Security Administration decision finding the appellant disabled since
August 1, 2009, and a partially-completed application for Family and Medical Leave
Act leave dated September 22, 2009. IAF, Tab 5 at 30-71, Tab 22 at 1; PFR File, Tab 5
at 3, 8-10, 12-20. However, because the administrative judge found that the statutory
deadline was not subject to equitable to lling, the factual basis of the appellant’s
entitlement to the regulatory notice was not developed in the proceedings below. See
ID at 4-5.
7
Although the appellant in Winchester was a former federal employee covered by
CSRS, Winchester, 449 F. App’x at 937, the relevant statutory and regulatory
requirements for applying for and establish ing entitlement to a disability retirement
under CSRS and FERS are “broadly similar,” Chapman v. Office of Personnel
Management, 110 M.S.P.R. 423, ¶ 9 (2009); see supra n.4.
8

equitably toll the statutory filing deadline based on an agency’s failure to give
regulatory notice.
¶12 In Jeter and King, the Board considered the exact issue before us now:
whether an agency’s failure to notify an appellant of the deadline for filing a
disability retirement application, as required by 5 C.F.R. § 844.202(b)(1),
provides a basis for waiving the 1-year statutory filing deadline under 5 U.S.C.
§ 8453. King, 112 M.S.P.R. 522, ¶ 14; Jeter, 71 M.S.P.R. at 498-500. The Board
determined that it does not, stating:
[I]t is true that OPM’s regulation [5 C.F.R. § 844.202(b)] required
the [appellant’s employing agency] to inform the appellant of the
deadline for filing a disability retirement application and that it did
not do so. Accepting this failure to satisfy a notice obligation
imposed by OPM as an independent basis for waiver of the statutory
deadline, when Congress has already defined the only basis for such
waiver, would essentially permit OPM to vary the filing
requirements set by Congress in the statute. OPM, however, only
has such authority as has been granted or delegated to it under the
specific terms prescribed by Congress in the delegating statute. See
Killip v. Office of Personnel Management, 991 F.2d 1564, 1569-70
(Fed. Cir. 1993). When Congress has mandated specific timeliness
requirements regarding the filing of an application or election and a
particular filing does not meet those requirements, therefore, OPM
lacks the authority to consider it. See Deerinwater v. Office of
Personnel Management, 78 F.3d 570, 571-73 (Fed. Cir. 1996)
(upholding disallowance of application under 5 U.S.C. § 8453 as
untimely filed); Killip, 991 F.2d at 1570 (upholding disallowance of
appellant’s election where it was made after date prescribed by
Congress).
King, 112 M.S.P.R. 522, ¶ 14 (quoting Jeter, 71 M.S.P.R. at 500). This result
accords with the well-settled propositions of law that public funds like disability
retirement benefits must be spent according to the letter of the difficult judgments
reached by Congress as to the common good, and that agencies may not stretch
their jurisdiction to decide questions whose resolution properly lies with
Congress. Jeter, 71 M.S.P.R. at 501 (citing Office of Personnel Management v.
Richmond, 496 U.S. 414, 428 (1990)).
9

¶13 We therefore discern no basis to disturb the administrative judge’s finding
that equitable tolling may not be invoked to waive the statutory filing deadline,
even if the employing agency failed to give the appellant regulatory notice to
which he was otherwise entitled.

NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
10

If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for
information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.

FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2796542. Public record. Not legal advice.