               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


                                        05-3116



                                 DINEEN L. JORDAN,

                                                       Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                       Respondent.

                           __________________________

                            DECIDED: October 12, 2005
                           __________________________


Before MAYER, CLEVENGER, and DYK, Circuit Judges.

PER CURIAM.

      Dineen L. Jordan (“Jordan”) appeals the final decision of the Merit Systems

Protection Board denying her petition for review of the board’s initial decision upholding

an Office of Personnel Management (“OPM”) denial of her application for disability

retirement benefits. Jordan v. Office of Pers. Mgmt., AT-844E-04-01410I-1 (MSPB Feb.

7, 2005). We vacate and remand for further adjudication.

      In order for Jordan’s application for Federal Employees Retirement System

(“FERS”) disability retirement benefits to be timely, she must have applied for said
benefits either before or within one year after separation from Federal service. See

5 U.S.C. § 8453 (2000). In Johnston v. Office of Pers. Mgmt., 413 F.3d 1339 (Fed. Cir.

2005), which was unavailable to the board at the time of its decision, we held that the

time period for filing an application for disability retirement under the Civil Service

Retirement System (“CSRS”) does not begin to run until the agency complies with a

regulation requiring notification to the employee of the possibility of disability retirement.

Although this case arises under FERS and not CSRS, the rationale of Johnston applies

equally to this case.

       OPM argues that its letter to Jordan dated January 29, 2000, notified her of the

time period for filing a claim for disability retirement benefits. This letter did not satisfy

the agency’s duty to “advise the employee in writing of his or her possible eligibility for

disability retirement and of the time limit for filing an application.” 5 C.F.R.

§ 844.202(b)(1). Instead of advising of her “possible eligibility for disability retirement”,

the letter informed her that she was ineligible because the time limit for filing an

application had expired and that any application filed would be disallowed as untimely.

As such, this letter failed to provide Jordan with the requisite notice for the time

limitation to begin. See Johnston, 413 F.3d at 1343 (“[I]nadequate or confusing notice

does not satisfy the duty of notice of substantive rights.” (citing Wood v. Office of Pers.

Mgmt., 241 F.3d 1364, 1367 (Fed. Cir. 2001))). Consequently, we vacate the final

decision of the board and remand the case for further adjudication in light of our holding

in Johnston.




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