The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACQUELYN R. BROOKS, DOCKET NUMBER
Appellant, CH-831E-17-0030-I-1
v.
OFFICE OF PERSONNEL DATE: May 27, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jacquelyn R. Brooks, Indianapolis, Indiana, pro se.
Carl E. Hobbs, II, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
dismissing her application for disability retirement as untimely filed. Generally,
we grant petitions such as this one only in the following circumstances: the
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
initial decision contains 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 administrative 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. 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, 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 as MODIFIED to find that
the appellant received sufficient notice of her possible eligibility for disabili ty
retirement.
BACKGROUND
¶2 In October 2010, the appellant’s employing agency, the Defense Finance
and Accounting Service, removed her from her position as an accountant for
absence without official leave (AWOL). Initial Appeal File (IAF), Tab 4 at 46,
100-02. The appellant filed a Board appeal of the removal, and in a decision
dated March 23, 2012, the Board affirmed an administrative judge’s initial
decision sustaining the removal. Brooks v. Department of Defense, MSPB Docket
No. CH-0752-11-0119-I-1, Final Order (Mar. 23, 2012). On October 5, 2015, the
appellant applied for disability retirement benefits under the Civil Service
Retirement System (CSRS). IAF, Tab 4 at 145-48, Tab 12 at 3. By initial
decision dated April 20, 2016, OPM dismissed the appellant’s disability
retirement application as untimely filed. IAF, Tab 4 at 7-8. The appellant
requested reconsideration of OPM’s decision, and on August 30, 2016, OPM
issued a reconsideration decision affirming its initial decision because the
3
appellant did not timely file her application and did not show a basis on which to
waive the filing deadline. Id. at 4-6.
¶3 The appellant timely appealed OPM’s reconsideration decision to the Board
and requested a hearing. IAF, Tab 1, Tab 7 at 1. Following a hearing, the
administrative judge issued an initial decision that affirmed OPM’s
reconsideration decision. IAF, Tab 15, Initial Decision (ID). The administrative
judge found that the appellant did not show that she became mentally incompetent
within 1 year of her separation from employment such as would warrant a waiver
of the time limit to file an application for disability retirement. ID at 5 -7. She
further found that the appellant did not show that her former employing agency
committed harmful procedural error in failing to notify OPM that she was
disabled or file an application for disability retirement on her behalf at the time of
her separation, as she was not removed because of her medical condition . ID
at 7-8. The administrative judge also found that the appellant did not show that
the employing agency erred in failing to notify her of her eligibility to apply for
disability retirement, as lack of notice was not a basis on which to waive the time
to file an application for disability retirement. ID at 8-9.
¶4 The appellant has filed a petition for review in which she argues that t he
employing agency’s failure to notify her of her eligibility for disability retirement
entitles her to equitable tolling of the time limit to file an application for
disability retirement, and that the Bruner presumption should apply such that she
is eligible for disability retirement benefits. 2 Petition for Review (PFR) File,
Tab 1 at 3-9. OPM has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An application for disability retirement under the CSRS must be filed with
an employee’s employing agency before the employee separates from service or
2
The appellant appears to refer to Bruner v. Office of Personnel Management, 996 F.2d
290 (Fed. Cir. 1993), as discussed in further detail below.
4
with the former employing agency or with OPM within 1 year after the
employee’s separation. 5 U.S.C. § 8337(b); 5 C.F.R. § 831.1204(a). This 1-year
time limit for filing a disability retirement application following an employee’s
separation from service may be waived if the employee is mentally incompetent
at the date of separation or within 1 year thereafter and if the application is filed
with OPM within 1 year from the date the employee is restored to competency or
is appointed a fiduciary, whichever is earlier. King v. Office of Personnel
Management, 112 M.S.P.R. 522, ¶ 7 (2009); 5 C.F.R. § 831.1204(d). On review,
the appellant does not challenge the administrative judge’s finding that she did
not show that she was mentally incompetent at the date of separation or within
1 year thereafter, and we discern no reason to disturb this finding. ID at 5 -7; see
Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason
to disturb the administrative judge’s findings when she considered the evidence
as a whole, drew appropriate inferences, and made reasoned conclusions on the
issue of credibility); Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987) (same).
¶6 Rather, the appellant contests the administrative judge’s finding that her
employing agency’s failure to inform her of possible eligibility for disability
retirement at the time of her removal did not provide a basis for waiving the
statutory deadline to apply for disability retirement. PFR File, Tab 1 at 6-9; ID
at 7-9. In support of her argument, the appellant cites the decision of the U.S.
Court of Appeals for the Federal Circuit in Johnston v. Office of Personnel
Management, 413 F.3d 1339, 1342-43, revised on recons., 430 F.3d 1376 (Fed.
Cir. 2005), 3 which indicated that equitable tolling of the 1-year time limit for
filing an application for disability retirement may be available when the agency
3
On reconsideration, the Federal Circuit modified its opinion to reflect that the duty to
notify the appellant of his separation and eligibility for disability retirement belonged
primarily to the agency that employed him, rather than OPM. Johnston, 430 F.3d
at 1376-77.
5
fails to notify an employee of her potential eligibility for disability retirement
benefits. PFR File, Tab 1 at 8; see also Winchester v. Office of Personnel
Management, 449 F. App’x 936, 938-39 (Fed. Cir. 2011) (nonprecedential)
(stating that the Board is not barred from equitably correcting a lack of notice of
potential eligibility for disability retirement). 4
¶7 However, we need not rely upon the Federal Circuit’s decision because the
appellant in this case received adequate notice of her potential eligibility for
disability retirement benefits. Under the CSRS, when an agency issues a decision
to remove an employee and not all of the conditions for an agency to file an
application for disability retirement on behalf of an employee are satisfied, but
the removal is based on reasons “apparently caused by a medical condition,” the
agency must advise the employee in writing of her possible eligibility for
disability retirement. 5 C.F.R. § 831.1205(b)(1). Here, although the appellant
was removed for AWOL, the agency official sustaining the appellant’s removal
discussed in his decision the appellant’s medical condition in connection with her
request for reasonable accommodation, concluding that while her absences “may
be medically justified,” the appellant could not be accommodated and did not
dispute the charge of AWOL. IAF, Tab 4 at 100-02. The removal decision
further notified the appellant that, “If you believe your health condition continues
to prevent you from returning to duty, you may wish to explore the option of
disability retirement,” and provided her with the contact information for human
resources staff should she wish to do so. Id. at 102. Such notice was sufficient to
meet the requirements of 5 C.F.R. § 831.1205(b)(1). 5 Thus, OPM properly
dismissed the appellant’s application for disability retirement as untimely filed. 6
4
The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662,
¶ 13 n.9 (2016).
5
The parallel regulation applicable to disability retirement under F ederal Employees
Retirement System further requires the agency to provide notice of the time limit for
filing an application for disability retirement; however, under the regulation applicable
6
¶8 The appellant did not raise before the administrative judge the argument
that Bruner v. Office of Personnel Management, 996 F.2d 290, 293-94 (Fed. Cir.
1993), which provides that a rebuttable presumption of entitlement to a disability
retirement arises if the employee is removed for physical inability to perform the
essential functions of her position, assuming she is otherwise qualified, applies
here. Accordingly, we do not consider it on review. See Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980) (stating that the Board generally will
not consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence). Moreover, because the appellant’s application
for disability retirement was untimely, we do not reach the merits of her
application for disability retirement and thus do not reach the issue of whether the
rebuttable presumption set forth in Bruner applies here. Cf. Kleinknecht v. Office
of Personnel Management, 96 M.S.P.R. 198, ¶¶ 7-9 (2004) (finding that the
appellant’s letter constituted a timely application for disability retirement and
remanding the matter for a determination of the appellant’s entitlement to
disability retirement). Accordingly, we affirm the administrative judge’s initi al
decision, as modified by this Final Order.
to the CSRS, no notice of the time limit for filing is required. Compare 5 C.F.R.
§ 831.1205(b)(1), with 5 C.F.R. § 844.202(b)(1).
6
We also agree with the administrative judge that the employing agency was not
required to submit an application for disability retirement on the appellant’s behalf. ID
at 7-8. At a minimum, there is no indication that the appellant was institutionalized or
incapable of making a decision to file an application for disability retirement at the time
of her removal. See 5 C.F.R. § 831.1205(a)(3) (requiring that the employee be
institutionalized or that the agency conclude that the employee is incapable of making a
decision to file an application for disability retirement before an agency must file a
disability retirement application on an employee’s behalf).
7
NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appro priate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
9
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction. 8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, 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
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdictio n expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.