Petition for Writ of Certiorari — Hoff v. Office of Personnel Management

| Supreme Court. U.

(1) FILED -

No. ____Q415 00 MAY 5 - 2005

OFFICE OF THE CLERK

3n The

Supreme Court of the Anited States

4

vv

MARY M. HOFF,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

,

vv

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

<—

vv

PETITION FOR WRIT OF CERTIORARI

a

vv

MICHAEL J. PETERSEN

(Counsel of Record)

PETERSEN LAW OFFICE, LLC

631 South Perry Street

Montgomery, Alabama 36104

Tel.: (334) 269-1506

Fax: (334) 269-1505

Attorney for Petitioner Mary M. Hoff

|

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

I.

This case presents the question of whether the Due

Process Clause of the United States Constitution has been

abridged by a decision of the Court of Appeals for the

Federal Circuit upholding the Opinion of the Merit Sys-

tems Protection Board which found that an individual who

is receiving disability compensation pursuant to the

Federal Employee’s Compensation Act is not a federal

employee.

ii

PARTIES TO THE PROCEEDING

The caption of the case contains the names of all the

parties.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .............. i

PARTIES TO THE PROCEEDING.....................000000. ii

I iii

ZaMRME CMF BART ERI OEE 6 BMD cs ceccccscscecccsssosscécccoscsssescces v

CITATION OF THE OFFICIAL REPORTS OF THE

OPINIONS ENTERED IN THIS CASE.................. 1

BASIS FOR SUPREME COURT JURISDICTION .... 1

CONSTITUTIONAL PROVISIONS INVOLVED IN

SET SPITE tanidesstinasliniulnnisesnpiatddiantneniiubdasiiananstibinies 1

STATEMENT OF THE CASE ..............cccccossssasscccssees 2

SENET iskaisacesecciessbescnndscbesnestinnbuibssibeaninbicegalanans 3

A. The Court Of Appeals Decision Fails To

Follow Federal Statutes And Opinion Of

The Supreme Court And Conflicts With

Previously Rendered Opinions Of The

Circuit And With Opinions Of The Merit

Systems Protection Board....................0... 3

1. The Court Of Appeals Decision Fails

To Comport With Federal Statutes ..... 4

2. The Court Of Appeals Decision Con-

flicts With Opinions Of The Supreme

RONNIE cise sebinssioneuinletcnhanssnahinanstseanaiicoaiheentbe 7

3. The Court Of Appeals Decision Con-

flicts With Its Own Previously Ren-

dered Decisions And Those Of The

Merit System Protection Board........... 8

SETI TENTION cihsiiiiraichuihictinsadusecdagldanekaleneanidaamnavannintaaeel 13

iv

TABLE OF CONTENTS -— Continued

Page

APPENDICES:

Court of Appeals Opinion: Mary M. Hoff v. Office of

Personnel Management, unpublished opinion,

Court of Appeals for the Federal Circuit, No. 04-

es SN Ts Si iniciccdactaniniccntcsninnkacpasibontnaih App. 1

Merit Systems Protection Board Initial Order, AT-

831E-03-0503-I-1, August 5, 20038.....................00008 App. 2

Merit Systems Protection Board Final Order, AT-

831E-03-0503-I-1, December 30, 2003.................... App. 8

TABLE OF AUTHORITIES

Page

FEDERAL CASES:

Bracey v. Office of Personnel Management, 236 F.3d

BAe COA BA. FD scctshasiciniincsncicaiesatgitaadwisasan 10, 11, 12

Caminetti v. United States, 242 U.S. 470, 37 S. Ct.

Seis Fak Bde Mel> MNNEE G NEE FT Pisiscoscsbncnsnstediinsaibapainiaabahiccbiedanaeds 7

Fernandez v. Dep’t of the Army, 234 F.3d 553 (Fed.

CARR SED ssiiciissntsansiscenesssisbibnesiithbinanaeaiedlesaniiesietilaiiiudia: 8

Glaspell v. Office of Personnel Management, 20

RARE FO CRED ssickantcnensccdainstsadaienscsoiabaniaa said 9

Glenn v. Office of Personnel Management, 37

SR Ly | NNER Tne Me file BU nNie a 8,9

Hamilton v. Rathbone, 175 U.S. 414, 20 S. Ct. 155,

OA STR: BID sisiscstcincincctiannantisaeiasiatbiateeanaamabien 7

Kimbrough v. Office of Personnel Management, 63

ER STs, FREE PET ORI SD 10

Losh v. Office of Personnel Management, 37

- LR, FE Ge cistcnncicinig evlicantaas ended 10

Mary M. Hoff v. Office of Personnel Management,

unpublished opinion, Court of Appeals for the

Federal Circuit, No. 04-3158, February 18, 2005......... 11

Sangenito v. Office of Personnel Management, 82

M.S.P.R. 520 (1999), aff’d on recons., 85 M.S.P.R.

AR COO sncsinesnsniniiainaniisanapiabiiedienencamiiinaaian eels eee |

UNITED STATES CONSTITUTION:

Constitution of the United States, Amendment V............... 1

vi

TABLE OF AUTHORITIES - Continued

Page

FEDERAL STATUTES:

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BO CEs, BORD onsscicssntssvicteccleeeenaiae eens 5

TUBAL © TPO wicsissinsisintisttecanieniaiaai 2,8

© UGA, © GI cesvescntnstninnsicatiaaiinigainiensentia en 5

© UBS. § Bi ccsinsccnssesisvsstmsicceeauadatniene 5, 6

© UG, § Bai sisicnisticinserciniasbiacatassaiieseeie: en 9

S UG. FGI winctasisstesitomimdiaaa ee 4,6,7

© VBS, § Bip serctcssnsinsisitionentinnaaatiadeonae ae 2

S U.S.C. § SAB 1(aNBNC)...........ccccccccccccccccecscsccscessecseseceseerese 2

BB WIAD. § BIE scincsitinseniniecisnnbdiemmanaa en 1

1

CITATION OF THE OFFICIAL REPORTS OF THE

OPINIONS ENTERED IN THIS CASE

The Opinion of the Court of Appeals for the Federal

Circuit was issued on February 18, 2005. The Opinion may

not be cited as precedent. Appendix App. 1.

e

-

BASIS FOR SUPREME COURT JURISDICTION

The Opinion of the Court of Appeals for the Federal

Circuit was issued on February 18, 2005 Appendix App. 1.

Petitioner Mary M. Hoff (“Hoff”) seeks review of that

judgment on a writ of certiorari.

This Court has jurisdiction under 28 U.S.C. § 1254 to

review on a writ of certiorari the judgment of a federal

court of appeals.

.

4

CONSTITUTIONAL PROVISIONS

INVOLVED IN THE CASE

Constitution of the United States, Amendment V, Due

Process Clause states:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless presentment

or indictment of a Grand Jury, except in case

arising in the land or naval forces, or in the Mili-

tia, when in actual service in time of War or pub-

lic danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or

limb, nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of

2

law; nor shall private property be taken for pub-

lic use without just compensation.

,

vv

STATEMENT OF THE CASE

This case presents the question of whether the Due

Process Clause of the United States Constitution has been

abridged by a decision of the Court of Appeals for the

Federal Circuit upholding the Opinion of the Merit Sys-

tems Protection Board finding that an individual who is

receiving disability compensation pursuant to the Federal

Employee’s Compensation Act is not a federal employee.

On December 10, 2002, the Office of Personnel Man-

agement (hereafter “OPM”) received an application for

disability retirement from Hoff pursuant to 5 U.S.C.

§ 8337(a). Hoff has been on the roles of the Office of

Workman’s Compensation Program (hereinafter “OWCP”)

since 1991. Appendix App. 4.

The Office of Personnel Management (hereinafter

“OPM”) denied Hoff’s application for disability benefits on

the basis that it was untimely filed. On April 14, 2003,

Hoff timely appealed to the Merit Systems Protection

Board (hereinafter “MSPB”) for review of the OPM deci-

sion in accordance with 5 U.S.C. § 8451(a)(2)(C). Appendix

App. 2. The MSPB rendered its Initial Decision on August

5, 2003 affirming the denial of Hoff’s application for

disability retirement as untimely filed. Appendix App. 3.

Hoff timely filed a petition for review of the initial

decision by the administrative judge. Appendix App. 8.

This petition was denied on December 30, 2003. Pursuant

to 5 U.S.C. § 7703, Hoff filed a request for review of the

3

MSPB decision tb the Court of Appeals for the Federal

Circuit. That court had jurisdiction over MSPB final

orders or decisions pursuant to 28 U.S.C. § 1295(a)(9).

Appendix App. 1. On February 18, 2005 the Court of

Appeals affirmed without opinion, the decision of the

MSPB. Appendix App. 1.

This petition for writ of certiorari follows.

Hoff asks that this Court grant her petition for a writ

of certiorari to conform the Court of Appeals decision to

existing Supreme Court authority and to harmonize the

Court of Appeals result with federal statutes, its own

decisional law as well as that of the Merit Systems Protec-

tion Board, and to correct a result that, if undisturbed, will

abridge Hoff’s Due Process rights.

,

v

ARGUMENT

A. The Court Of Appeals Decision Fails To Follow

Federal Statutes And Opinion Of The Supreme

Court And Conflicts With Previously Rendered

Opinions Of The Circuit And With Opinions Of

The Merit Systems Protection Board.

Throughout her review and appeals, Hoff has con-

tended that her placement on the workman’s compensa-

tion roles of the OWCP has not changed her status as a

federal employee. The OWCP has denied Hoff Due Process

by refusing to consider an application for disability re-

tirement which was filed 10 years after her transfer from

the roles of the United States Air Force to the worker’s

compensation roles of the OWCP in 1991. Hoff asserts that

the OPM decision was contrary to existing case law of the

OPM and MSPB and that she was a federal employee at

the time of her application for disability retirement.

1. The Court Of Appeals Decision Fails To

Comport With Federal Statutes.

When an injured federal employee is placed on the

roles of OWCP, that individual remains a federal em-

ployee. The individual is in a leave of absence without pay

for the period of time that the individual is receiving

benefits from OWCP. The relevant portion of 5 U.S.C.

§ 8332(f) provides that:

An employee or former employee who returns to

duty after a period of separation is deemed, for

the purpose of this subsection, to have been in a

leave of absence without pay for that part of the

period in which he received benefits [from

OWCP]....

5 U.S.C. § 8332(f)

The Court of Appeals, in considering the decision of

the MSPB, clearly disregarded the language of § 8332(f)

which obviously establishes that an individual who is

receiving benefits from OWCP is in a leave of absence

without pay status. Since it has remained undisputed that

Hoff is receiving workers’ compensation benefits from

OWCP, then logic dictates that § 8332(f) places her in a

leave of absence without pay status, and she is still there-

fore considered to be a federal employee by statute.

Further, the Court of Appeals has disregarded the

language of OPM’s own governing regulation, 5 C.F.R.

§ 353.107 which clearly states that a claimant absent from

an agency due to a compensable injury is to be treated as

9)

though he or she had never left. (Emphasis added.) Hoff

would contend that this statute clearly supports her

argument that while she was a claimant (her status as an

OWCP claimant has never been disputed by the Agency)

she was an employee and was to be treated as though she

had never left.

The Federal Employees’ Compensation Act (FECA), 5

U.S.C. § 8101 et seg., provides that if a government em-

ployee is injured on the job, the employee is entitled to

certain benefits, including compensation for the injury.

One of the conditions of continuing to receive those bene-

fits is that a partially disabled employee must be willing to

accept suitable work when the agency offers such work. 5

U.S.C. § 8106(c)(2). See also 20 C.F.R. § 10.515(b). How-

ever, if the employee refuses to accept such work then this

refusal will result in the termination of the employee’s

FECA benefits. But, if the employee’s disability renders

the employee eligible for disability retirement, the em-

ployee is then free to refuse the offer of suitable work and

may elect to take disability retirement instead of the

FECA benefits.

The statute refers to an individual who is receiving

FECA benefits as an employee. It does not designate an

individual who is receiving FECA benefits as anything

other than an employee. The Court of Appeals ruling

affirming the administrative law judge’s order finding that

Hoff was not an employee at the time she filed her appli-

cation for disability retirement flies in the face of the

plain language of the statute. The statute in this instance

is referring to an individual who was injured while in

federal service, and has, as a result of that injury, become

partially disabled. When the statute speaks of the par-

tially disabled employee being offered a duty position, it

6

does not state that the injured person is not an employee,

but rather refers to them as partially disabled employees.

If the ruling of the administrative law judge is allowed

to stand, then no individual who is receiving federal

disability compensation benefits pursuant to the FECA -

can be a federal employee. The language of 5 U.S.C.

§ 8106(c)(2) does not imply that there is a status for an

individual receiving disability compensation benefits other

than that of employee. Therefore, by the clear meaning of

§ 8106(c)(2) Hoff was a partially disabled employee who

was receiving disability compensation benefits under the

provisions of § 8106(c)(2). At the time Hoff applied for

disability retirement, she was simply pursuing the option of

applying for disability retirement pursuant to § 8106(c)(2).

Therefore, the affirmation of OPM’s initial decision by

the Court of Appeals has failed to correctly interpret and

apply the statutory language of 5 C.F.R. § 353.107, 5

U.S.C. § 8106(c)(2) and 5 U.S.C. § 8332(f), each of which

clearly states that a person receiving federal compensation

benefits from OWCP is to be considered to be in a leave of

absence without pay status. Had the Court of Appeals

properly applied the statutory language to its analysis of

both the initial decision and the Final Order, then it would

have found Hoff to be a federal employee. Hoff asserts to

this Court that had she been found to be a federal em-

ployee in leave of absence without pay status at the time

she filed her application for disability retirement, then her

application for disability retirement would have been

found to have been timely filed.

7

2. The Court Of Appeals Decision Conflicts

With Opinions Of The Supreme Court.

In arriving at its decision to affirm the final order of

the MSPB, the Court of Appeals appears to have disre-

garded this Court’s rulings concerning the interpretation

of the meaning of a statute. As cited herein, 5 U.S.C.

§ 8332(f) establishes that when an employee returns to

duty after a period of separation for which that employee

has received benefits from OWCP, then that the employee

is deemed to have been in a leave of absence without pay

for that part of the period in which he or she received

benefits from OWCP.

“It is elementary that the meaning of a statute must,

in the first instance, be sought in the language in which

the act is framed, and if that is plain, and if the law is

within the constitutional authority of the law-making body

which passed it, the sole function of the courts is to enforce

it according to its terms.” Caminetti v. United States, 242

U.S. 470, 485-86, 37 S. Ct. 192, 194, 61 L. Ed. 442, 452-453

(1917) (citations omitted.)

The language of § 8332(f) is very plain and quite

simply declares that an individual who is receiving com-

pensation benefits from OWCP is a federal employee. As

this Court held in Hamilton v. Rathbone, “where the

language is plain and admits of no more than one meaning

the duty of interpretation does not arise and the rules

which are to aid doubtful meanings need no discussion.”

See Hamilton v. Rathbone, 175 U.S. 414, 421, 20 S. Ct.

155, 158, 44 L. Ed. 219, 222 (1899).

There can be no more than one meaning to the lan-

guage of § 8332(f). The Court of Appeals failed to properly

apply precedent of this Court when it affirmed the Final

Order of the MSPB. Therefore, Hoff was a federal em-

ployee by the plain meaning of that statute when she

applied for disability retirement. The Court of Appeals

should have found that she was a federal employee at the

time of her application for disability retirement and

granted her the relief she sought.

3. The Court Of Appeals Decision Conflicts

With Its Own Previously Rendered Deci-

sions And Those Of The Merit System Pro-

tection Board.

In a review of a decision by the MSPB, the Court of

Appeals will uphold the Board’s decision unless it is (1)

arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; (2) obtained without proce-

dures required by law, rule or regulation having been

followed; or (3) unsupported by substantial evidence. 5

U.S.C. § 7703(c); Fernandez v. Dep't of the Army, 234 F.3d

553, 555 (Fed. Cir. 2000).

The Court of Appeals should have found that the

MSPB’s finding was arbitrary, capricious and is not in

accordance with the law. In his Opinion, the Administra-

tive Law Judge cites to Glenn v. Office of Personnel Man-

agement, 37 M.S.P.R. 500, 502 (1988) for the premise that

“lilt is patently clear that the appellant’s placement on the

OWCP rolls did not undo her separation.” Appendix App.

4. However, contrary to the Administrative Law Judge’s

position, instead of standing for the proposition that

placement on OWCP rolls means the employee is sepa-

rated from federal service, Glenn stands for the proposi-

tion that an Agency is under no obligation to inform an

employee at the time of separation of the statutory dead-

line for filing a retirement application pursuant to

9

Glaspell v. Office of Personnel Management, 20 M.S.PR.

375 (1984). The Board, in Glenn, found:

The administrative judge properly found that the

VA had no obligation to inform the appellant, at

the time of her separation, of the statutory dead-

line for filing a retirement application. Glaspell,

20 M.S.P.R. at 376. The appellant does not allege

that during the one year filing period, she sought

information from the VA regarding her disability

retirement rights and that it either failed to pro-

vide her with the requested information or gave

her incorrect advice. In fact, the appellant

elected to apply for OWCP benefits rather than

to file an application for disability retirement.

See 5 U.S.C. §8116(b). The appellant did not con-

tact the VA until after the statutory deadline for

filing her disability retirement application had

expired. Thus, the appellant has failed to show

that her untimely filing was caused by misinfor-

mation furnished to her by the VA. (Emphasis

added.)

Glenn 37 M.S.P.R. at 500.

Thus, the Initial Decision failed to cite appropriate

case law or statute in denying that the Appellant’s conten-

tion that her placement on the OWCP rolls continued her

status as an employee. In particular, the MSPB failed to

address the issue raised by Hoff that since she was receiv-

ing disability compensation from the Department of Labor,

she was a federal employee by statute and case law. In

addition, neither OPM nor the MSPB addressed Hoff’s

argument that while on the OWCP’s disability compensa-

tion rolls, Hoff continues to accrue both leave and retire-

ment benefits just as any other federal employee. See Losh

v. Office of Personnel Management, 37 M.S.P.R. 150 (1988).

10

Neither the Initial Decision nor the Opinion addressed the

fact that an employee who is in leave without pay status

prior to her removal from position subject to Civil Service

Retirement System is entitled to disability retirement. See

Kimbrough v. Office of Personnel Management, 63 M.S.P.R.

263 (MSPB 1994).

The Court of Appeals previously held in Losh v. Office

of Personnel Management, 37 M.S.P.R. 150 (1988):

in order for an individual to receive service credit

for those periods during which he or she received

OWCP benefits, he or she must return to duty

upon cessation of those benefits ... (citations

omitted.)

Losh, 37 M.S.P.R. at 150.

In Losh the appellant was appealing the administra-

tive law judge’s finding that he was not entitled to service

credit for the period of time he received OWCP benefits

because he had elected to receive disability retirement

benefits in place of OWCP compensation benefits and

hence had been separated from his position with the

Department of Defense because he had retired. Losh, 37

M.S.P.R. at 150. However, that is not the present situation.

Hoff was and is receiving OWCP compensation benefits.

Further, the Court of Appeals disregarded its own

holding in Bracey v. Office of Personnel Management, 236

F.3d 1356 (U.S. App. 2001) that:

FECA provides that if a government employee is

injured on the job, the employee is entitled to

certain benefits, including compensation for the

injury. One of the conditions of continuing to re-

ceive those benefits is that a partially disabled

employee must be willing to accept “suitable

work” when the agency offers such work. .. . The

id

11

employee's refusal to accept such work results in

termination of his FECA benefits. If the em-

ployee’s disability renders the employee eligible

for disability retirement, however, the employee

is free to refuse the offer of such work and to take

disability retirement instead of the FECA bene-

fits.

Bracey, 236 F.3d at 1358.

The Court of Appeals’ own opinion in Bracey describes

an individual receiving federal disability compensation

under FECA as an employee. The Court has failed to

conform its decision in Hoff v. OPM to its own prior hold-

ings. Ms. Hoff attempted to take disability retirement and

was denied the right to apply for those benefits.

In addition, the Court of Appeals considered the

differences between OWCP definitions of “employability”

and OPM definitions of either “accommodation” or an

“existing vacant position” in Bracey v. OPM:

OWCP may find that an employee is capable of

working part-time and is therefore ineligible for

full benefits, while the Board finds that the part-

time duty does not constitute an accommodation

in the employee’s position or an existing vacant

position and that the employee is therefore enti-

tled to a disability retirement annuity. E.g., San-

genito v. Office of Personnel Management, 82

M.S.P.R. 520, PP8-10 (1999), aff’d on recons., 85

M.S.P.R. 211 (2000). It also appears that OWCP

could determine that a set of ungraded, unclassi-

fied set of duties constitutes “suitable work” un-

der its own regulations, but this set of duties

would not constitute a “vacant position” to which

an employee could be reassigned for purposes of

12

determining his eligibility for disability retire-

ment.

Bracey, 236 F.3d at 1359.

The Court of Appeals clearly indicates in Bracey that

it considers an individual who is receiving OWCP disabil-

ity compensation benefits to be an employee because if

they were not an employee while receiving OWCP disabil-

ity compensation benefits, then OWCP would be unable to

“find that an employee is capable of working part-time and

is therefore ineligible for full benefits.” Bracey, 236 F.3d at

1359. If Bracey was not an employee, then the Court of

Appeals was incorrect in its finding in Bracey. However, as

the holding in Bracey has not been overturned, then logic

dictates that Hoff, who is also receiving OWCP disability

compensation benefits, is also an employee.

Therefore, the Court of Appeals was incorrect in

determining that the MSPB was correct in its determina-

tion that Ms. Hoff did not fulfill the statutory require-

ments for the filing of a disability retirement application.

Because Hoff has clearly demonstrated that she was a

federal employee at the time she applied for disability

retirement, the decision of the MSPB was due to be re-

versed by the Court of Appeals and remanded for that

action necessary to allow Hoff to apply for disability

retirement.

*

13

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

MICHAEL J. PETERSEN

AL Bar No.: ASB-5072-E48M

Attorney for Mary M. Hoff

PETERSEN LAW OFFICE, LLC

631 South Perry Street

Montgomery, AL 36104

TEL.: (334) 269-1506

FAX: (334) 269-1505

ne

App. 1

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition

is not citable as precedent. It is a public record.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

04-3158

MARY M. HOFF,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

JUDGMENT

(Filed Feb. 18, 2005)

ON APPEAL from the Merit Systems Protection Board

IN CASE NO(S. AT831E030503-I-1

This CAUSE having been heard and considered it is

ORDERED and ADJUDGED:

AFFIRMED. See Fed. Cir. R. 36.

Per Curiam (RADER, Circuit Judge, PLAGER, Senior

Circuit Judge, and DYK, Circuit Judge.

ENTERED BY ORDER OF THE COURT

DATED _ FEB 18 2005 /s/ Jan Horbaly

Jan Horbaly, Clerk

App. 2

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

MARY M. HOFF, DOCKET NUMBER

A AT-831E-03-0503-I-1

ppellant,

v.

OFFICE OF PERSONNEL DATE: August 5, 2003

MANAGEMENT,

Agency.

(CSA 4 026 898)

Michael J. Petersen, Esquire, Montgomery, Alabama,

for the appellant. -

Thomas L. Styer, Washington, D.C., for the agency.

BEFORE

- Richard P. Klein

Administrative Judge

INITIAL DECISION

INTRODUCTION AND JURISDICTION

On April 14, 2003, the appellant timely appealed to

the Board from the agency’s March 12, 2003 reconsidera-

tion decision denying her application for disability retire-

ment benefits on the basis that it was untimely filed. The

Board has jurisdiction over this appeal. See 5 U.S.C.

§ 8337(d); 5 C.F.R. § 831.110.

The appellant initially requested a hearing in this

case. However, on June 17, 2003, the appellant withdrew

her request and asked that the case be adjudicated on the

i te sa i tt

App. 3

record as it currently existed. See Appeal File, Tab 8. And,

for the reasons set forth below, the agency’s reconsidera-

tion decision is AFFIRMED.

ANALYSIS AND FINDINGS

The appellant bears the burden of proving, by prepon-

derant evidence,* that she filed her application for disabil-

ity retirements in a timely manner or that she is entitled

to a waiver of the filing deadline. See Cheeseman v. Office

of Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir.

1986), cert. denied, 479 U.S. 1037 (1987). In order to be

timely, the appellant was required to file an application for

disability retirement within one year after her separation

date. 5 U.S.C. § 8337(b). And, mental incompetence is the

only basis for waiving the statutory filing deadline. Id.;

Stevenson-Phillips v. Office of Personnel Management, 48

M.S.P.R. 527, 529 (1991).

The appellant does not allege that she was mentally

incompetent. And, the following facts are not in dispute.

The appellant was separated by the application of reduc-

tion-in-force (RIF) procedures from the position of Medical

Clerk, GS-4, by the Department of the Air Force effective

April 5, 1991. See Appeal File, Tab 8. And, she was not

employed by the Department of the Air Force or any other

agency in the Federal government subsequent to this date.

Id. However, she was placed on the rolls of the Office of

Workers’ Compensation Programs (OWCP) following the

* A preponderance of the evidence is that degree of relevant

evidence that a reasonable person, considering the record as a whole,

would accept as sufficient to find that a contested fact is more likely to

be true than untrue, 5 C.F.R. § 1201.56(c)(2).

App. 4

RIF. Thus, she argues that her application for disability

retirement which was received by the agency on December

10, 2002, was timely filed.

I disagree. It is patently clear that the appellant’s

placement on the OWCP rolls did not undo her separation.

See Glenn v. Office of Personnel Management, 37 M.S.P.R.

500, 502 (1988). And, there was no obligation on her

employer to advise her at the time of her separation of the

statutory deadline for filing an application for disability

retirement. Jd. I also note that there is no allegation that

the appellant sought information from the Department of

the Air Force with respect to her disability retirement

rights or that her employing agency gave her incorrect

advice. Id.

The record reflects that, following her separation, the

appellant elected to apply for OWCP benefits instead of

filing for disability retirement. Jd. Thus, her application

for disability retirement was not filed within the one-year

period that began with her separation from the Depart-

ment of the Air Force on April 5, 1991. Accordingly, it was

untimely filed. And, the appellant does not assert mental

incompetence. Therefore, there is no basis for waiving the

statutory deadline in this case. See Crane v. Office of

Personnel Management, 55 M.S.P.R. 16, 18 (1992), aff’d,

996 F.2d 1235 (Fed. Cir. 1993) (Table).

DECISION

The agency’s reconsideration decision is AFFIRMED.

FOR THE BOARD: /s/ Richard P. Klein

Richard P. Klein

Administrative Judge

App. 5 7

NOTICE TO APPELLANT

This initial decision will become final on September

9, 2003, unless a petition for review is filed by that date or

the Board reopens the case on its own motion. This is an

important date because it is usually the last day on which

you can file a petition for review with the Board. However,

if this initial decision is received by you more than 5 days

after the date of issuance, you may file a petition for

review within 30 days after the date you actually receive

the initial decision. The date on which the initial decision

becomes final also controls when you can file a petition for

review with the Court of Appeals for the Federal Circuit

The paragraphs that follow tell you how and when to file

with the Board or the federal court. These instructions are

important because if you wish to file a petition, you must

file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision

by filing a petition for review. Your petition, with support-

ing evidence and argument, must be filed with:

The Clerk of the Board

Merit Systems Protection Board

1615 M Street, NW.,

Washington, DC 20419

if you file a petition for review, the Board will obtain the

record in your case from the administrative judge and you

should not submit anything to the Board that is already

part of the record. Your petition must be postmarked,

faxed, or hand-delivered no later than the date this initial

decision becomes final, or if this initial decision is received

by you more than 5 days after the date of issuance, 30

App. 6

days after the date you actually receive the initial deci-

sion. If you fail to provide a statement with your petition

that you have either mailed, faxed, or hand-delivered a

copy of your petition to the agency, your petition will be

rejected and returned to you.

JUDICIAL REVIEW

If you are dissatisfied with the Board’s final decision,

you may file a petition with:

The United States Court of Appeals

for the Federal Circuit

717 Madison Place, NW.

Washington, DC 20439

You may not file your petition with the court before this

decision becomes final. To be timely, your petition must be

received by the court no later than 60 calendar days after

the date this initial decision becomes final.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review

of this initial decision in accordance with the Board’s

regulations.

CERTIFICATE OF SERVICE

I certify that the attached Document(s) was (were)

sent by regular mail this day to each of the following:

Appellant

Mary M. Hoff

1508 Amoy Court

Montgomery, AL 36110

App. 7

Appellant’s Representative

Michael J. Petersen, Esq.

631 South Perry Street

Montgomery, AL 36104

Agency’s Representative

Thomas L. Styer

Office of Retirement Programs

Reconsideration and Appeals Branch

Office of Personnel Management

P. O. Box 664

Washington, DC 20044

Other

Kenneth L. Bates

U.S. Office of Personnel Management

Employee Relations Division

1900 E Street, NW, Room 7412

Washington, DC 20415

August 5, 2003 /s/ Peggy Campbell

(Date) Peggy Campbell

Legal Assistant

Docket No. AT-831E-03-0503-I-1

Party: Appellant’s Representative

Michael J. Petersen, Esq.

631 South Perry Street

Montgomery, AL 36104

App. 8

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARY M. HOFF, DOCKET NUMBER

Appellant, “/-831E-03-0503-I-1

v

OFFICE OF PERSONNEL DATE: Dec. 30, 2003

MANAGEMENT,

Agency.

(CSA 4 026 898)

Michael J. Petersen, Esquire, Montgomery, Alabama,

for the appellant.

Thomas L. Styer, Washington, D.C., for the agency.

BEFORE

Neil A.G. McPhie, Acting Chairman

Susanne T. Marshall, Member

FINAL ORDER

The appellant has filed a petition for review in this

case asking us to reconsider the initial decision issued by

the administrative judge. We grant petitions such as this

one only when significant new evidence is presented to us

that was not available for consideration earlier or when

the administrative judge made an error interpreting a law

or regulation. The regulation that establishes this stan-

dard of review is found in 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 there is no new, previously unavailable,

App. 9

evidence and that the administrative judge made no error

in law or regulation that affects the outcome. 5 C.FR.

§ 1201.115(d). Therefore, we DENY the petition for review.

The initial decision of the administrative judge is final.

This is the Board’s final decision in this matter. 5 C.FR.

§ 1201.113.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court

of Appeals for the Federal Circuit to review this final

decision. 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 your receipt of this order. If

you have a representative in this case, and your represen-

tative receives this order before you do, then you must file

with the court no later than 60 calendar days after receipt

by your representative. 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 dead-

line 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).

at | ec eee

App. 10

You may read this law as well as review the Board's

regulations and other related material at our web site,

http://www.mspb.gov/mspb_library.html.

FOR THE BOARD: /s/ Matthew Shamm

Bentley M. Roberts, Jr.

Clerk of the Board

Washington, D.C.

CERTIFICATE OF SERVICE

I certify that this ORDER was sent today:

By certified mail to:

Michael J. Petersen, Esq.

Petersen Law Office, LLC.

631 South Perry Street

Montgomery, AL 36104

By regular mail to:

Mary M. Hoff

1508 Amoy Court |

Montgomery, AL 36110

Thomas L. Styer

Office of Retirement Programs

Reconsideration and Appeals Branch

Office of Personnel Management

P.O. Box 664

Washington, DC 20044

Kenneth L. Bates

U.S. Office of Personnel Management

Employee Relations Division

1900 “E” Street, N.W., Room 7412

Washington, DC 20415

App. 11

Merit Systems Protection Board

Atlanta Regional Office

401 West Peachtree Street, N.W.

Suite 1050

Atlanta, GA 30308

By hand to:

Office of the Special Counsel

1730 M Street, N.W.

Suite 201

Washington, DC 20036-4505

December 30, 2003 /s/ Jacquelin Wilson

(Date) Jacquelin Wilson

Legal Assistant

Washington, DC

Docket No : AT-831E-03-0503-I-1

Participant Type : Private Attorney

Michael J. Petersen, Esq.

Petersen Law Office, LLC.

631 South Perry Street

Montgomery, AL 36104