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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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