                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WAYNE R. ALLETTO,                               DOCKET NUMBER
                  Appellant,                         PH-844E-16-0209-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 20, 2016
       MANAGEMENT,
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Wayne R. Alletto, Jewett City, Connecticut, pro se.

           Linnette Scott, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The Office of Personnel Management (OPM) has filed a petition for review
     of the initial decision, which vacated its reconsideration decision and remanded
     the appellant’s disability retirement application to OPM for further consideration.
     Generally, we grant petitions such as this one only when: the initial decision


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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). For
     the reasons discussed below, we DENY OPM’s petition for review, AFFIRM the
     initial decision, and REMAND the case to OPM for further adjudication in
     accordance with this Order.
¶2         Shortly prior to his separation from Federal service on January 23, 2004,
     the appellant applied for disability retirement.         In an initial decision dated
     May 5, 2004, OPM denied his application and gave him proper notice of his right
     to request reconsideration of the initial decision within 30 days of the date of the
     initial decision. Initial Appeal File (IAF), Tab 5 at 57-62. The appellant did not
     request reconsideration.
¶3         In   2014,    the    appellant   filed   another   application   for   disability
     retirement.   Id. at 27-56.     OPM recognized a connection between the 2014
     application with the earlier application and assigned them the same Civil Service
     Annuity (CSA) case numbers. Compare id. at 27, with id. at 57. Nevertheless,
     OPM determined that the 2014 application was an entirely new application, which
     it dismissed because it was not filed within 1 year of his separation, as required
     by 5 U.S.C. § 8453, and the appellant did not show that he was mentally
     incompetent at the time of his separation or that he became incompetent within 1
     year thereafter.    IAF, Tab 5 at 23-26.          OPM affirmed its decision in a
     reconsideration decision dated January 13, 2016, and this appeal followed. IAF,
     Tabs 1, 6 at 4-5.
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¶4         In an initial decision issued on the written record, the administrative judge
     found that the appellant had filed a disability retirement application within the
     statutory deadline when he applied for disability retirement in 2003, and that
     OPM should have adjudicated his 2014 application as a late-filed request for
     reconsideration.     IAF, Tab 8, Initial Decision at 4.              He vacated the
     reconsideration decision and remanded the case to OPM for further review and
     issuance of a new reconsideration decision. Id. at 4-5.
¶5         OPM has filed a petition for review of the initial decision. Petition for
     Review (PFR) File, Tab 1. OPM argues on review that the administrative judge
     misinterpreted 5 U.S.C. § 8453 and § 841.306(c)-(d). 2             As noted above,
     section 8453 sets forth a 1-year deadline for filing a disability retirement
     application with a limited exception in cases of mental incompetence.
     Section 841.306(c)-(d) sets forth the form in which a request for reconsideration
     must be made, provides for a 30-day deadline, and provides for an exception to
     the deadline when the applicant was not notified of it or was prevented by
     circumstances beyond his control from complying with it.             Neither of these
     provisions is apt here.     The issue before the Board on review of the initial
     decision is whether the administrative judge correctly found that OPM should
     have adjudicated the appellant’s 2014 disability retirement application as though
     it were a request for reconsideration of its 2004 initial decision denying his 2003
     disability retirement application or whether OPM acted correctly by adjudicating
     the appellant’s 2014 disability retirement application as an entirely new
     application subject to new filing deadlines.       OPM’s arguments pertain to the


     2
       OPM actually cites 5 C.F.R. § 831.109(d)-(e). PFR File, Tab 1 at 4. Section 831.109
     applies to disability retirement under the Civil Service Retirement System (CSRS) and
     not to this case, which is a disability retirement under the Federal Employees’
     Retirement System (FERS). The CSRS and FERS regulations contain many similar
     provisions, however, and 5 C.F.R. § 841.306(c)-(d) is substantially the same as 5 C.F.R.
     § 831.109(d)-(e). We will consider OPM’s argument as if it had cited the correct
     regulation.
                                                                                      4

     deadlines that apply once the decision as to how to adjudicate the 2014
     application is made.
¶6        The administrative judge correctly found that OPM obviously was aware of
     the appellant’s earlier case when it adjudicated his 2014 case. We agree that it is
     odd that OPM did not mention the earlier case during the adjudication of the later
     case, especially given the fact that OPM referenced the same CSA number as in
     the earlier case but treated this as a new case. There may well be good reasons
     for OPM’s decision to adjudicate the 2014 application as a new case rather than a
     request for reconsideration of the old case. However, OPM has not explained
     what those reasons might be.      Moreover, we are aware of no law, rule, or
     regulation that permits or forbids the filing of multiple disability retirement
     applications, or that sets forth any standards or procedures for dealing with
     multiple applications when they occur.
¶7        We find, therefore, that OPM’s petition for review does not identify any
     error in the initial decision and otherwise does not meet the criteria for review.
     Accordingly, we affirm the initial decision and remand this case to OPM.

                                          ORDER
¶8        On remand, OPM shall issue a new reconsideration decision that treats the
     appellant’s 2014 disability retirement application as a request for reconsideration
     of OPM’s 2004 decision on his 2003 disability retirement application. OPM shall
     issue the new reconsideration decision within 60 days from the date of this Order
     and shall advise the appellant of his appeal rights if he disagrees with that new
     decision. See, e.g., Stephenson v. Office of Personnel Management, 119 M.S.P.R.
     457, ¶ 6 (2013).
¶9        We also ORDER OPM to tell the appellant promptly in writing when it
     believes it has fully carried out the Board’s Order and to describe the actions it
     took to carry out the Board’s Order. We ORDER the appellant to provide all
     necessary information OPM requests to help it carry out the Board’s Order. The
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      appellant, if not notified, should ask OPM about its progress.        See 5 C.F.R.
      § 1201.181(b).
¶10         No later than 30 days after OPM tells the appellant it has fully carried out
      the Board’s Order, the appellant may file a petition for enforcement with the
      office that issued the initial decision on this appeal if the appellant believes that
      OPM did not fully carry out the Board’s Order.         The petition should contain
      specific reasons why the appellant believes OPM has not fully carried out the
      Board’s Order, and should include the dates and results of any communications
      with OPM. See 5 C.F.R. § 1201.182(a).




      FOR THE BOARD:                            ______________________________
                                                Jennifer Everling
                                                Acting Clerk of the Board
      Washington, D.C.
