        NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               __________________________

              JAMES W. WINCHESTER,
                    Petitioner,

                            v.
     OFFICE OF PERSONNEL MANAGEMENT,
                 Respondent.
               __________________________

                       2011-3074
               __________________________

   Petition for review of the Merit Systems Protection
Board in Case No. DE831L100176-I-1.
              ___________________________

              Decided: November 22, 2011
              ___________________________

    ANNE WHALEN GILL, Highlands Ranch Law Center, P.C.,
of Highlands Ranch, Colorado, for petitioner.

    SCOTT D. AUSTIN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR.,
Assistant Director. Of counsel on the brief was MICHAEL J.
WINCHESTER   v. OPM                                        2


TIMINSKI, Deputy Assistant General Counsel, United States
Department of Veterans Affairs, of Washington, DC. Of
counsel was WADE M. PLUNKETT, Office of Personnel Man-
agement, of Washington, DC.
              __________________________

   Before NEWMAN, LOURIE, and LINN, Circuit Judges.
NEWMAN, Circuit Judge.

     James W. Winchester petitions for review of the final
decision of the Merit Systems Protection Board, affirming
the denial by the Office of Personnel Management (OPM) of
his application for disability retirement benefits. Winches-
ter v. Office of Personnel Management, DE-831L-10-0176-I-1
(MSPB April 5, 2010). We vacate the Board’s decision, for it
was based on the incorrect premise that the Board has no
equitable authority, and remand for determination of
whether the one-year period for filing an application for
disability retirement benefits may be equitably tolled with
respect to Mr. Winchester.

                       BACKGROUND

    Mr. Winchester was employed as an Assistant United
States Attorney with the Department of Justice, starting in
1972. In 1992 he began to experience difficulties handling
the demands of his position, and over the succeeding years
he experienced several lengthy medical leaves. By 1996 Mr.
Winchester was on extended leave and receiving disability
benefits as an employee. On January 16, 1998 the Depart-
ment of Justice sent Mr. Winchester a written notice of
separation from service. The notice extensively described
Mr. Winchester’s deteriorating employment situation, and
referred to his bipolar disorder. The notice advised him that
he had the right to appeal his removal to the Merit Systems
Protection Board, and stated the applicable procedure.
3                                           WINCHESTER    v. OPM


However, the notice did not advise Mr. Winchester of his
possible eligibility for disability retirement, or state the time
limit of one year for filing such application.

    By statute, an application for disability retirement must
be filed within one year after separation from service:

    5 U.S.C. §8337(b). A claim may be allowed under
    this section [Disability retirement] only if the appli-
    cation is filed with the Office before the employee or
    Member is separated from the service or within 1
    year thereafter. This time limitation may be waived
    by the Office for an employee or Member who at the
    date of separation from service or within 1 year
    thereafter is mentally incompetent, if the applica-
    tion is filed with the Office within 1 year from the
    date of restoration of the employee or Member to
    competency or the appointment of a fiduciary,
    whichever is earlier.

Regulation requires that notice of possible eligibility for
disability retirement must be given when an employee is
removed for medical reasons:

    5 C.F.R. §831.1205(b)(1). When an agency issues a
    decision to remove an employee [and] the removal is
    based on reasons apparently caused by a medical
    condition, the agency must advise the employee in
    writing of his or her possible eligibility for disability
    retirement.

    On February 16, 2009 Mr. Winchester submitted an ap-
plication for disability retirement. OPM denied the applica-
tion because it was not filed within one year of his
separation from service. OPM also determined that Mr.
Winchester had not established “mental incompetency” as
WINCHESTER   v. OPM                                          4


set forth in §8337(b) as grounds for waiver of the time limit
for filing an application.

    Mr. Winchester requested reconsideration, arguing that
equitable tolling should apply because neither the Depart-
ment of Justice nor OPM nor any other agency had provided
him with the required notice concerning disability retire-
ment. On reconsideration OPM again denied the applica-
tion, stating that failure of the agency to give the notice
required by the regulation cannot override the statutory
time limit for filing the application. The Merit Systems
Protection Board agreed with OPM, leading to this appeal.

                         DISCUSSION

    Mr. Winchester argues that the agencies, like the
courts, have equitable discretion to toll or waive a time
limit, when the agencies have erroneously failed to meet the
obligation to give notice of the time limit. He argues that
the Board erroneously viewed his situation as presenting a
conflict between statute and regulation, whereas the regula-
tion merely implements the statute. He argues that the
agency’s failure to give the regulatory notice is tantamount
to a statutory violation by the agency.

    The Court has guided the interpretation of implement-
ing regulations as carrying into effect the purpose of the
statute. See Ernst & Ernst v. Hochfelder, 425 U.S. 185,
213–14 (1976) (“The rulemaking power granted to an ad-
ministrative agency charged with the administration of a
federal statute is not the power to make law. Rather, it is
the power to adopt regulations to carry into effect the will of
Congress as expressed by the statute.”) Thus Mr. Winches-
ter argues that the notice requirement of 5 C.F.R.
§831.1205(b)(1) must be met before OPM may bar the
application as untimely under the statute. Mr. Winchester
5                                           WINCHESTER    v. OPM


cites Johnston v. Office of Personnel Management, 413 F.3d
1339 (Fed. Cir. 2005), for the proposition that a statutory
filing deadline cannot be invoked until the employee is given
notice of his right to file.

    OPM responds that the statute provides only one excep-
tion to the time limit for filing, viz. mental incompetency,
and precludes any exception based on agency error and lack
of notice. Mr. Winchester states that in view of the agency’s
error, the Board and OPM may invoke their equitable power
and correct the error. OPM states that it does not have
such equitable power. In Killup v. Office of Personnel
Management, 991 F.2d 1564 (Fed. Cir. 1993), this court held
that OPM lacked the authority to consider an application by
Ms. Killup to transfer from the Civil Service Retirement
System to the Federal Employee’s Retirement System
because Ms. Killup’s application was not submitted within
the statutory filing window; however, it does not appear
that any notice requirement was violated by OPM or the
employing agency.

     Neither Killup, nor the statute here involved, prohibits
the Board and OPM from equitably correcting a governmen-
tal error that prejudiced the employee. See Arctic Slope
Native Ass’n, Ltd. v. Sebelius, 583 F.3d 785, 798 (Fed. Cir.
2009) (“[W]e must assume that Congress intended equitable
tolling to be available unless there is good reason to believe
otherwise.”). Here, the government admits that it failed to
comply with the regulation and did not give the required
notice. To determine if equitable tolling may be available,
we take guidance from the analysis in United States v.
Brockamp, 519 U.S. 347, 350 (1997), where the Court stated
that some statutory time limits “can often [be] plausibly
read as containing an implied ‘equitable tolling’ exception.”
To determine whether the statutory intent tolerates equita-
ble tolling, it is appropriate to consider the statute's “detail,
WINCHESTER   v. OPM                                          6


its technical language, the iteration of the limitations in
both procedural and substantive forms, and the explicit
listing of exceptions.” Id. at 351.

     In Young v. United States, 535 U.S. 43, 49 (2002) the
Court stated that “It is hornbook law that limitations peri-
ods are customarily subject to equitable tolling, unless
tolling would be inconsistent with the text of the relevant
statute.” In Kirkendall v. Department of Army, 479 F.3d
830, 836–37 (Fed. Cir. 2007) (en banc) this court applied
these principles to the untimely appeal of a veteran’s
USERRA claim, and authorized a hearing that had been
denied. The analogy to disability claims is sufficiently close
to support similar equitable treatment, for the purpose of
the notice requirement is to assure that a medically sepa-
rated employee is aware of possible disability retirement
benefits.

     Since the disability retirement statute explicitly author-
izes tolling even when notice is given in cases of mental
incompetency, tolling when notice is erroneously not given
conforms to the general legislative purpose. It is notewor-
thy that 5 C.F.R. §844.202 requires OPM to file a disability
retirement application on behalf of an employee if the
employee is incapable of making a decision to file the appli-
cation. These provisions relating to disability retirement
reflect a Congressional posture more tolerant than the
absolute bar here imposed by OPM. This posture is eluci-
dated by comparing the disability retirement statute with
the statute in Brockamp, where the Court held that the tax
statute, which thrice reiterated the time limits for claiming
a tax refund, showed that Congress clearly intended to bar
tolling of the tax refund period. 519 U.S. at 351.

   Unlike the tax statute, the disability retirement statute
does not weigh against application of equitable tolling to
7                                          WINCHESTER   v. OPM


relieve a disabled employee when the government fails to
meet its notice obligation. Analogy may be drawn to Bowen
v. City of New York, 476 U.S. 467, 480 (1986) where the
Court held that an untimely appeal from denial of Social
Security benefits was suitable for equitable tolling because
the government’s actions prevented the claimants from
learning of their claim. In contrast, in Brockamp the Court
explained that the formalistic subject matter of tax law “is
not normally characterized by case-specific exceptions
reflecting individualized equities,” 519 U.S. at 352, whereas
in cases of individual hardship such as Bowen the Court has
relieved the rigor. The disability retirement statute is more
like that in Bowen than in Brockamp.

    The agency is not barred from correcting its error of fail-
ing to meet the notice requirement, for the notice regulation
is designed to protect the employee. We vacate the Board’s
decision, and remand for determination by the agency of
whether equitable tolling applies to Mr. Winchester’s appli-
cation and, if so, to consider that application on its merits.

              VACATED AND REMANDED
